Opposition Brief — Douglas Vincent Metheny v. M.C. Hamby, Warden
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1987
DOUGLAS VINCENT METHENY,
Petitioner,
Vv.
M.C. HAMBY, Warden, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
W.J. MICHAEL CODY
Attorney General of Tennessee
JERRY L. SMITH
Deputy Attorney General
WAYNE E. UHL
Assistart Attorney General
Counsel of Record
Office of the Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37219-5025
(615) 74) 6421
Counsel for Respondents
QUESTION PRESENTED FOR REVIEW
Whether an alleged violation of the trial-before-
return provision of Article IV(e) of the Interstate Agreement on
Detainers, in the absence of any allegation or proof that the
violation harmed the defense in any way, can constitute a
“fundamental defect” in the prosecution which justifies the
extraordinary relief of habeas corpus under 28 U.S.C. § 2254.
QUESTION PRESENTED FOR REVIEW .
OPINIONS BELOW
JURISDICTION
STATEMENT OF THE CASE
REASONS FOR DENYING THE WRIT OF CERTIORARI:
THIS CASE DOES NOT PROPERLY PRESENT THE ISSUE OF WHETHER
I.
Il.
IAD CASES ARE COGNIZABLE, AS NO DETAINERS WERE
FILED AND THE IAD DID NOT APPLY TO THE CASE.
IN ANY EVENT, THE SPLIT AMONG THE COURTS OF APPEALS
ON IAD COGNIZABILITY IS NOT SUBSTANTIAL ENOUGH
TO REQUIRE RESOLUTION BY THIS COURT. oe 8 e
A. The Existence of the Split
B. The Effect of the Split
. THE MAJORITY POSITION FOLLOWED BY THE SIXTH
CIRCUIT IN THIS CASE IS A CORRECT INTERPRETATION
OF THIS COURT'S PRECEDENTS. °
CONCLUSION
CERTIFICATE OF SERVICE
APPENDICES:
Metheny v. Hamby, 835 F.2d 672 (6th Cir. 1987)
Order of Distriet Court, 8/13/86
Report and Recommendation of Magistrate, 3/21/86
State v, Metheny, 589 S.W.2d 943
cream. Cesm. Gee. B97OP . 2. © «
othe
3
ll
13
17
17
App.
App.
App.
App.
CASES:
Booker v. Wainwright
703 F.2d 1251 (llth Cir.),
cert. denied 464 U.S. 922 (1983)
Bonner v. City of Pritchard
661 F.2d 1206 (llth Cir. 1981)
Bowen v. Johnston,
306 U.S. 19 (1939)
Brown v. Wolff,
706 F.2d 902 (9th Cir. 1983)
Bush v. Muncy,
659 F.2d 402 (4th Cir. 1981),
cert. denied 455 U.S. 910 (1982)
Carchman v. Nash,
473 U.S. 716 (1985)
Carlson v. Hong,
707 F.2d 367 (9th Cir. 1983)
Casper v. Ryan,
822 F.2d 1283 (3rd Cir. 1987)
Cavallaro v. Wyrick,
701 F.2d 1273 (8th Cir.),
cert. denied 462 U.S. 1135 (1983)
Cody v. Morris,
623 F.2d 101 (9th Cir. 1980)
Commonwealth v. Florence,
7 Mass. App. 126, 387 N.E.2d
(1979) oe Oe ee ee eee
Cuyler v. Adams,
449 U.S. 433 (1981)
Davis v. United States,
417 U.S. 333 (1974)
Delaware v. Van Arsdall,
475 U.S. » 6 B.C. 34631,
89 L.Ed.2d 674 (1986) ‘
Echevarria v. Bell,
579 F.2d 1022 (7th Cir. 1978)
Edwards v. United States,
564 F.2d 652 (2nd Cir. 1977)
Fasano v. Hall,
615 *.26 555 (ist Cire.),
cert. denied 449 U.S. 867 (1980)
Florida v. Royer,
460 U.S. 491 (1983)
Foran v. Metz,
463 F.Supp. 1088 (S.D. N.Y.), aff'd without
opinion 603 F.2d 212 (2nd Cir.),
cert. denied 444 U.S. 830 (1979)
-iii-
14
Frisbie v. Collins,
342 U.S. 519 (1952)
Gibson v. Klevenhagen,
777 F.2d 1056 (Sth Cir. 1985)
Greathouse v. United States,
655 F.2d 1032 (10th Cir. 1981),
cert. denied 455 U.S.
Grizzell v. Tennessee,
926 (1982)
601 F.Supp. 230 (M.D. Tenn.)
appeal dism'd 746 F.2d 1476 (6th Cir.
Hill v. United States,
368 U.S. 424 (1962)
Hitchcock v. United States,
580 F.2d 964 (9th Cir.
Huff v. United States,
599 F.2d 860 (8th Cir.
cert. denied 444 U.S.
Johnson v. Stagner,
761 F.2d 758 (9th Cir.
Ker v. Illinois,
119 U.S. 436 (1886)
Kerr v. Finkbeiner,
757 F.2d 604 (4th Cir.
cert. denied 474 U.S.
Mars v. United States,
615 F.2d 704 (6th Cir.
cert. denied 449 U.S.
Martens v. Shannon,
836 F.2d 715 (lst Cir.
Metheny v. Hamby,
6835 F.2d 672 (6th Cir.
Metheny v. State,
589 S.W.2d 943 (Tenn. Crim. App.),
1978)
),
952 (1979)
1986)
),
929 (1985)
),
849 (1980)
1988)
1987)
cert. denied id. (Tenn. 1979),
cert. denied 445 U.S.
Nash v. Jeffes,
739 F.2d 878 (3rd Cir.
Ridgeway v. United States,
558 F.2d 357 (6th Cir.
cert. denied 436 U.S.
Rose v. Clark,
U.S.
Sassoon v. Stynchombe,
654 F.2d 371 (Sth Cir.
Shack v. Attorney General of Pennsylvania,
106 S.Ct.
967 (1980)
1984)
1977),
946 (1978)
1981)
776 F.2d 1170 (3rd Cir. 1985),
cert. denied 475 U.S.
1030 (1986)
Shigemura v. United States,
726 F.2d 380 (8th Cir.
1984)
-iv-
3101 (1986)
10
15
13,
16
ll
16
8,
10
14
12
State v. Boone,
40 Md. 41, 388 A.2d 150 (1978).
Stone v. Powell,
428 U.S. 465 (1976)
TinghitelIla v. California,
718 F.2d 308 (9th Cir. 1983)
United States ex rel. Esola v. Grooms,
520 F.2d 830 (3rd Cir. 1975)
United States ex rel. Holleman v. Duckworth,
592 F.Supp.
1423 (N.D. Ill. 1984),
rev'd 770 F.2d 690 (7th Cir. 1985),
cert. denied 474 U.S. 1069 (1986),
on remand 652 F.Supp. 82 (N.D. Ill. 1986)
United States v.
Black,
609 F.2d 1330 (9th Cir. 1979)
United States v.
601 F.2d 390
United States v.
436 U.S. 340
United States v.
441 U.S. 780
United States v.
Boniface,
(9th Cir. 1979)
Mauro,
(1978)
Timmreck,
(1979)
Williams,
615 F.2d 585 (3rd Cir. 1980)
Webb v. Keohane,
6804 F.2d 413 (7th Cir. 1986)
STATUTES AND RULES:
28 U.S.C. § 1254(1)
28 U.S.C. § 2101(c)
28 U.S.C. § 2254
28 U.S.C. § 2255
Fed. R. Crim. P. 32(a)
Interstate Agreement on Detainers,
Tenn. Code Ann. § 41-31-101
Tenn. R. Crim. P. 4(a)
-vV-
14
10, 12
10
9, 15
passim
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Sixth Circuit in this case is now published at 835 F.2d
672. A copy is attached as Appendix A.
The order of the United States District Court for the
Middle District of Tennessee adopting the report and
recommendation of a magistrate, and the report and
recommendation itself, are not published. Copies are attached
as Appendices B and C to this brief.
The opinion of the Tennessee Court of Criminal Appeals
affirming the petitioner's convictions on direct appeal is
published at 589 S.W.2d 943. A copy is attached as Appendix D.
JURISDICTION
This Court has jurisdiction to consider this petition
under 28 U.S.C. § 1254(1). Docketing cf the petition appears to
have been timely under 28 U.S.C. § 2101l(c).
STATEMENT OF THE CASE
Petitioner was charged with first-degree burglary and
armed robbery in Anderson County, Tennessee in January 1977, and
was captured by federal officers in Mississippi in March 1977.
He was also charged with a federal offense, and was brought to
the Eastern District of Tennessee.
Pursuant to the writ of habeas corpus ad prosequendum
issued by the Anderson County Criminal Court, petitioner was
brought there for a preliminary hearing on May i3, 1977.
Shortly thereafter he was convicted of the fedéral charge and
transported to a federal pris-n in Kansas to serve his sentence.
In July 1977 petitioner was returned to Anderson
County by federal authorities pursuant to a second writ of
efe
habeas corpus ad prosequendum, and he was indicted and
arraigned. Petitioner's counsel requested that trial he set
several months later to allow petitioner to undergo surgery.
Petitioner was then returned to the federal prison.
Petitioner's counsel subsequently moved to dismiss the
indictment on the ground that he had not been tried when brought
to the state court, in violation of Article IV(e) of the
Interstate Agreement on Detainers (IAD), Tenn. Code Ann.
§ 41-31-101. The state trial court denied the motion, finding
that its writs of habeas corpus ad prosequendum were not
“detainers” under the IAD.
Petitioner was brought back to Anderson County on a
third writ of habeas corpus ad prosequendum to stand trial in
July 1978. He was convicted of first-degree burglary and armed
robbery, and was further found to be an habitual criminal and
given a life sentence. At no time was a detainer filed under
the IAD; each time petitioner was returned to Anderson County,
it was on the basis of a writ of habeas corpus ad prosequendum.
In his direct appeal to .the Tennessee Court of
Criminal Appeals petitioner did not challenge the sufficiency of
the convicting evidence. Among the legal issues raised was his
IAD claim, which was denied on the basis of this Court's
decision in United States v. Mauro, 436 U.S. 340 (1978).
Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App.), cert.
denied id. (Tenn. 1979), cert. denied 445 U.S. 967 (1980).
State post-conviction proceedings resulted in the denial of
relief, and the instant petition for habeas corpus under 28
U.S.C. § 2254 was filed in the district court in January 1984.!
After an evidentiary hearing before a magistrate, he
recommended dismissal of the petition. The magistrate found the
Igarlier federal petitions had been filed, but were dismissed on
procedural grounds.
ofe
IAD issue to be cognizable as an issue of federal law, citing
Carchman v. Nash, 473 U.S. 716, 719 (1985). App. C-ll - C-l2.
On the merits, however, the magistrate found on alternative
grounds that no IAD violation had occurred. The district court
adopted the report and recommendation without comment, and
dismissed the petition. App. B.
The court of appeals affirmed, but on the ground that
the IAD violation alleged by the petitioner was not cognizable
under 28 U.S.C. § 2254. The court reaffirmed that a violation
of the trial-before-return provision of IAD art. IV(e) does not
constitute a “fundamental defect” in the prosecution justifying
habeas corpus relief, at least not “in the absence of
exceptional circumstances.” 6835 F.2d at 675.
Again, no detainer was ever issued to obtain the
petitioner's presence in Anderson County. Moreover, petitioner
has never alleged at any point in these proceedings that the
failure to try him the first two times he was brought to
Anderson County resulted in any prejudice to his ability to
defend himself in July 1978.
REASONS FOR DENYING THE WRIT OF CERTIORARI
I. THIS CASE DOES NOT PROPERLY PRESENT THE ISSUE OF WHETHER
1AD CASES ARE COGNIZABLE, AS NO DETAINERS WERE FILED AND
THE IAD DID NOT APPLY TO THE CASE.
The petitioner has presented his claim, and the Sixth
Circuit treated it, as an issue arising under the Interstate
Agreement on Detainers (IAD). Without addressing the merits,
the Sixth Circuit determined that even a facially valid claim of
an IAD violation, in the absence of an allegation of prejudice,
cannot justify habeas corpus relief and is therefore not
cognizable. However, a review of the petitioner's claims
demonstrates that this is not an IAD case at all, and would
ofe
therefore be an inappropriate vehicle for the determination of
the cognizability issue presented by the petitioner.
The petitioner's primary claim below was that he was
thrice brought to Anderson County on writs of habeas corpus ad
prosequendum, but was not tried until the third time. He
contended that the writs were “detainers” under the IAD, and
that his return without being tried violated art. IV(e) thereof.
In fact, this Court examined in 1978 the issue of
whether writs of habeas corpus ad prosequendum are “detainers,”
and answered in the negative. United States v. Mauro, 436 U.S.
340 (1978). Thus this case is not even a case falling under the
IAD, and does not provide the necessary predicate for
cons¢deration of the issue of whether IAD cases are cognizable.
This conclusion is not altered by the fact that the
magistrate analyzed the merits anew, on the basis of his concern
that Mauro did not control cases in which state writs are issued
to federal] prison authorities.* First, as the magistrate
demonstrated, the Mauro analysis leads to the same result in the
case of state writs. App. C-1ll - C-20. Second, even assuming
that state writs are not binding on federai authorities, they
are not thereby converted to “detainers,” but instead are merely
void. The fact that a defendant is brought within a court's
jurisdiction on a void writ that has been honored nonetheless,
or by some other illegal means outside the IAD, has no effect on
the jurisdiction of the court to try and convict the defendant.
Frisbie v, Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois,
119 U.S. 436, 444 (1886).
20ther courts had held since Mauro that the nonbinding nature of
state court writs is irrelevant. See, e.g., Commonwealth v.
Florence, 7 Mass. App. 126, 387 N.E.2d 152, 153 (1979); State v.
Boone, 40 Md. 41, 388 A.2d 150, 151 nm. 3 (1978).
~~
The petitioner also raised in the district court and
court of appeals an alternative argument which was not expressly
eddressec in any of the opinions, but which has no effect on the
above analysis. He contended that the original state arrest
warrant, which simply charged him with the offenses and
commanded his arrest, was actually a “detainer.” If so, then
the subsequent writs of habeas corpus constituted “written
requests” triggering IAD art. IV. Mauro, 436 U.S. at 361-365.
However, it is clear that a mere arrest warrant cannot
be a “detainer” triggering the IAD. A “detainer” has been
defined as a notice to prison officials that charges are pending
against an inmate, and requesting notification to the sender
before the inmate is released. Ridgeway v. United States, 558
F.2d 357, 360 (6th Cir. 1977), cert. denied 436 U.S. 946
(1978). The arrest warrant was not a notice of pending charges,
as no charges were pending when the warrant was drawn. Neither
did the warrant purport to request notification of release;
rather, it demanded arrest. Finally, a “detainer” may be lodged
by a prosecutor or law enforcement officer, Mauro, 436 U.S. at
358, while a Tennessee arrest warrant may be issued only by a
magistrate or clerk, Tenn. R. Crim. P. 4(a). Therefore, the
petitioner's arrest warrant argument does not bring this case
within the IAD any more than his writ argument.
If the Court wishes to resolve the cognizability
issue, therefore, it should await a case in which a true IAD
issue has been raised, rather than a non-IAD case such as this.
Il. IN ANY EVENT, THE SPLIT AMONG THE COURTS OF APPEALS ON IAD
COGNIZABILITY IS NOT SUBSTANTIAL ENOUGH TO REQUIRE
RESOLUTION BY THIS COURT.
The issue in this case is relatively narrow. The
respondents do not contest that the Interstate Agreement on
Detainers is a “law[{) .. . of the United States” authorized by
the Compact Clause and therefore subject to interpretation by
federal courts in a habeas corpus proceeding. Carchman v. Nash,
afe
473 U.S. 716, 719 (1985); see Cuyler v, Adams, 449 U.S. 433,
438-442 (1981). Instead, th. respondents contend and the Sixth
Circuit held that a violation of the trial-before-return
Provision of IAD art. IV(e), in the absence of a specific
showing of prejudice, cannot constitute a
fundamental defect which inherently
results in a complete miscarriage of
justice, nor an omission inconsistent
with the rudimentary demands of fair
procedure. It does not present
“exceptional circumstances where the
need for the remedy afforded by the
writ of habeas corpus is apparent.”
Hill v. United States, 368 U.S. 424, 428 (1962) (citations
omitted). This issue is termed an issue of “cognizability” as
opposed to jurisdiction, as it relates Primarily to whether
relief will be granted if a violation is found.
In this context, the respondents contend that the
split of authority relied upon by the petitioner is relatively
insubstantial, and does not merit review by the Court.
A. The Existence of the Split
The split of authority on the cognizability of IAD
violations in habeas corpus cases is largely illusory. The
following list catalogs those courts of appeals which have
agreed with the Sixth Circuit and held that violations of the
trial-before-return provisions of the IAD are not cognizable, in
the absence of a specific showing of resulting prejudice. Each
citation indicates which habeas corpus statute and IAD
provision(s) were involved.3
3This Court has conclusively held that the habeas corpus
remedies relating to state and federal convictions, 28 U.S.C.
§§ 2254 and 2255, respectively, are “identical in scope.” Davis
v. United States, 417 U.S. 333, 343-344 (1974); Hill v. United
States, 368 U.S. 424, 427 (1962); United States v. Hayman, 342
U.S. 205 (1952).
FIRST CIRCUIT: Fasano v. Hall, 615 F.2d 555, 557-558 (lst
Cir.), cert. denied 449 U.S. 867 (1980) (28 U.S.C.
§ 2254 case, alleged violations of IAD art. III(d)
trial-before-return provision and art. III(a)
trial-in-180-days provision); Martens v. Shannon, 836
F.2d 715, 718 mn. 4 (lst Cir. 1988) (§ 2254, art.
IlI(a) triali-in-180-days).
SECOND CIRCUIT: Edwards v. United States, 564 F.2d 652 (2nd
Cir. 1977) (§ 2255, art. IV(e) trial-before-return) ;
Foran v. Metz, 463 F.Supp. 1088, 1096 (S.D. N.Y.),
aff'd without opinion 603 F.2d 212 (2nd Cir.), cert.
Genied 444 U.S. 830 (1979) (§ 2254, art. III(a) and
IV(c) 180-day and 120-day provisions).
FOURTH CIRCUIT: Bush v. Muncy, 659 F.2d 402, 407-409 (4th Cir.
1981), cert. denied 455 U.S. 910 (1982) (§ 2254, art.
III(d) and IV(e) trial-before-return); Kerr v.
Finkbeiner, 757 F.2d 604 (4th Cir.), cert. denied 474
U.S. 929 (1985) (§ 2254, art. III(a) trial-in-
180-days).
FIFTH CIRCUIT: Sassoon v. Stynchombe, 654 F.2d 371, 374-375
(Sth Cir. 1981) (§ 2254, art. IV(e) trial-before-
return) .4
SIXTH CIRCUIT: Mars v. United States, 615 F.2d 704, 706-707
(6th Cir.), cert. denied 449 U.S. 849 (1980) (§ 2255,
art. IV(e) trial-before-return; with dicta applying to
art. IV(c) trial-in-!20-days provision, 615 F.2d at
705 mn. 5); Metheny v. Hamby, 835 F.2d 672 (6th Cir.
1987) (§ 2254, art. IV(e) trial-before-return) ;
“But cf. Gibson v. Klevenhagen, 777 F.2d 1056 (Sth Cir. 1985),
in which § 2254 habeas relief was granted for a two-and-one-
half-year violation of art. III(a) (trial-in-180-days). The
opinion does not mention cognizability or cite Davis,
suggesting that the issue was not even raised by the parties.
Neither does the opinion cite Sassoon, and could hardly be
considered to have overruled it.
ae
Gri«e ll_v. Tennessee. 601 F.Supp. 230, 231 (M.D.
Tenn.), appeal dismissed 746 F.2d 1476 (6th Cir. 1984)
(§ 2254, art. III(a) trial-in-180-days).
EIGHTH CIRCUIT: Huff v. United States, 599 F.2d 860 (8th
Cir.), cert. denied 444 U.S. 952 (1979) (§ 2255, art.
Iv(e) trial-before-return); Cavallaro v. Wyrick, 701
F.2d 1273, 1275 (8th Cir.), cert. denied 462 U.S. 1135
(1983) (§ 2241 pretrial, art. IV(d) pretransfer
hearing, writ granted by 2-1 decision based on express
finding of “exceptional circumstance”) ;> Shigemura v.
United States, 726 F.2d 380, 381 (8th Cir. 1984)
(§ 2255, art. IV(e) trial-before-return).
NINTH CIRCUIT: Hitchcock v. United States, 580 F.2d 964, 966
(9th Cir. 1978) (§ 2255, art. IV(e) trial-before-
return); United States v. Boniface, 601 F.2d 390, 394
(9th Cir. 1979) (§ 2255, art. IV(e) trial-before-
return); Carlson v. Hong, 767 F.2d 367, 368 (9th Cir.
1983) (§ 2254, art. IV(e) trial-before-return).
TENTH CIRCUIT: Greatc.se v. United States, 655 F.2d i052,
1034 (10t' Cir. 198 ), cert. denied 455 U.S. 926
(1982) (§ 255, art IV(e) trial-before-return).
ELEVENTH CIRCUIT: Sassoon v. Stynchombe, 654 F.2d 371, 374 (5th
Cir. 1981) (§ 2254, art. IV(e) trial-before-return) .®
Scavallaro has also been distinguished on the ground that it
was brought before the state court trial had been held, and
thus did not involve the overturning of a conviction. Shack v.
Attorney General of Pennsylvania, 776 F.2d 1170, 1173 (3rd Cir.
1985), cert. denied 475 U.S. 1030 (1986).
®sassoon was decided on August 28, 1981, and thus is binding
precedent in the Eleventh Circuit. Bonner v. City of
, 661 F.2d 1206 (llth Cir. 1981); Florida v. Royer,
460 U.S. 491, 505 nm. 10 (1983). In fact, Sassoon has been
relied upon by the Eleventh Circuit for one of its other
holdings. Booker v. Wainwright, 703 F.2d 1251, 1255 & n. 8
(llth Cir.), cert. denied 464 U.S. 922 (1983).
The petitioner cites a Ninth Circuit decision as representing
“the middle ground.” Pet. at 10. In fact, the Ninth Circuit
has found to be cognizable only those cases involving one of
the time provisions of the IAD, having found those provisions
to have roots in the speedy trial guarantee of the Sixth
Amendment. Carlson, supra, 707 F.2d at 368; Cody v. Morris,
623 F.2d 101, 102-103 (9th Cir. 1980) (§ 2254 case, art. IV(c)
trial-in-120-days); Brown v. Wolff, 706 F.2d 902, 905-906 (9th
Cir. 1983) (§ 2254, art. III(a) trial-in-180-days); Tinghitella
v. California, 718 F.2d 308, 310-311 (9th Cir. 1983) (§ 2254
case, art. III(a) trial-in-180-days); Johnson v. Stagner, 781
F.2d 758 (9th Cir. 1986) (§ 2254 case, art. III(a) trial-in-
180-days) .’ The above catalog shows that other courts of
appeals disagree with respect to the time provisions. But
since the instant case does not involve either of the time-
specific IAD provisions, it does not present that split for
resolution.
We next review those courts of appeals cited by the
petitioner as contrary to the majority position.
SEVENTH CIRCUIT. In Echevarria v. Bel], 579 F.2d
1022, 1024-1025 (7th Cir. 1978), the court took cognizance of
the alleged IAD violation (art. IV(e) trial-before-return) in a
§ 2254 case simply upon finding that the IAD is a “law[]
of the United States” under § 2254(a) without further analyzing
whether the petitioner had alleged a "fundamental defect” in
che prosecution. In Webb v. Keohane, 804 F.2d 413 (7th Cir.
1986), the court simply followed Echevarria. Moreover, in both
cases the court found other procedural bars to granting the
writ of habeas corpus, rendering academic the “fundamental
defect” question.
7The distinction between the policies and roots of the different
IAD provisions was also recognized by the Ninth Circuit in
i tates v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979),
which held that the trial-before-return provisions are waivable
based partly on their nonconstitutional foundations.
wea
A district court in the Seventh Circuit found the
issue to be undecided there, and granted the writ for an art.
IV(c) 120-day violation after an extensive analysis of the Davis
"fundamental defect” doctrine. However, the decision was
reversed for a procedural default, and the writ was ultimately
denied. United States ex rel, Holleman v,. Duckworth, 592
F.Supp. 1423 (N.D. Ill. 1984), rev'd 770 F.2d 690 (7th Cir.
1985), cert. denied 474 U.S. 1069 (1986), on remand 652 F.Supp.
82 (N.D. Ill. 1986).
THIRD CIRCUIT. The “fundamental defect” issue was
also passed over in the earliest Third Circuit case, United
States ex rel. Esola v. Grooms, 520 F.2d 830 (3rd Cir. 1975),
which also rested cognizance on the “law of the United States”
determination, but remanded the case for further development of
the record. In United States v. Williams, 615 F.2d 585, 589-590
(3rd Cir. 1980), however, the court suggested that because
Congress had provided for dismissal of entire prosecutions for
violations of the IAD (see arts. III(d) and Iv(e)), it had
expressed its intent that those violations be treated as
“fundamental defects."8
In more recent cases, however, the Third Circuit has
attempted to minimize the holding in Williams. In Shack v.
Attorney General of Pennsylvania, 776 F.2d 1170, 1172-1174 (3rd
Cir. 1985), cert. denied 475 U.S. 1030 (1986), the court found
an alleged violation of IAD art. IV(d) (pretransfer hearing) to
be noncognizable, specifically distinguishing Williams and
Esola. And in Casper v. Ryan, 822 F.2d 1283 (3rd Cir. 1987),
the majority held that an alleged art. III(a) trial-in-180-days
violation is not cognizable, after taking pains to limit
Williams and Esola to trial-beforec-return violations and to note
8williams was followed by the district court in Nash v.
Carchman, 558 F.Supp. 641, 643 (D. N.J. 1983); and the issue was
not addressed in the court of appeals, Nash v. Jeffes, 739 F.2d
878 (3rd Cir. 1984); perhaps explaining why the issue was not
presented to this Court in Carchman v. Nash, ¢73 U.S. 716 (1985).
-10-
that in neither case did the court have to determine whether it
should actually grant relief. Id. at 1288-1291.9
In summary, of the eleven courts of appeals that have
arguably considered the issue in or are bound by published
opinions, nine would hold that the petitioner's alleged
trial-before-return violation would not be considered in the
absence of an allegation of actual prejudice to the defense.
The Seventh Circuit has not addressed the "fundamental defect”
issue, and the Third Circuit is in the process of questioning
and narrowing its precedent to the contrary. Resolution by this
Court is not necessary in light of the de minimis nature of the
split.
B. The Effect of the Split
Perhaps more important than 4 recital of holdings on
the issue is an analysis of the impact the split might have on
future habeas corpus cases. The respondents respectfully submit
that the present record does not indicate that
{iJm some Circuits an IAD violation
that constitutes an absolute defense
under the Agreement can, without more,
serve as the basis for habeas relief
{while in] others, prejudice must be
shown.
Kerr v,. Finkbeiner, 474 U.S. 929, 931 (1985) (White, J., joined
by Marshall, J., dissenting from denial of certiorari).
In fact, the only effect of the split thet is clear
thus far is a rather academic difference in analytical
approach. As demonstrated above, at least nine courts of appeal
would require a showing of prejudice before considering habeas
9thus the Third Circuit has taken a position exactly opposite
the Ninth Circuit, holding that only the time-specific IAD
provisions are cognizable. In fact, the Casper majority
suggests that violations of the trial-before-return provisions
are more egregious than violations of the 120- and 180-day
provisions. 6822 F.2d at 1290.
ee
corpus relief for a trial-before-return violation, 19 While the
Third and Seventh Circuits might consider the merits of an
alleged violation before evaluating prejudice, there is little
indication that either would actually grant the writ without
some showing of a “fundamental defect.”
In the Third Circuit this was foreshadowed in Casper
v, Ryan, 822 F.2d 12863 (3rd Cir. 1987), which discussed the
earlier precedent in the Circuit on the point.
We believe that Casper confuses
two separate issues: the question
whether a claim of an IAD violation is
cognizable in a section 2254 or 2255
proceeding is a different one than
whether the petitioner who can
establish only a minor violation is
entitled to the writ sought. The
binding precedent of our decisions in
Williams and Esola is that the IAD is a
“law[] of the United States” and that a
prisoner is therefore entitled to
invoke sections 2254 or 2255 by
alleging an IAD violation. However, in
Williams, we also stated, “Whether
collateral relief is granted may turn
on the merits of the alleged violation,
but we do not believe the availability
of collateral relief should be so
determined.” 615 F.2d at 590 n. 4
(emphasis in original). In fact, we
denied collateral relief to Williams
because the method by which he was
transferred had not then been held to
be governed by the _ IADA. Id. at
592-593. Similarly, in Esola, .
{w]e specifically noted that what we
were deciding was that a claimed IAD
violation stated a claim over which the
federal court had jurisdiction to grant
habeas corpus relief. {520 F.2d) at
834 & n. 16, 839.
822 F.2d at 1289. While the Casper majority conceded that a
"fair reading” of Williams “suggests” that IAD violations would
result in habeas relief without a showing of prejudice, 822 F.2d
10a; noted above (n. 3 at 5), the Fifth Circuit case of Gibson
vy. Klevenhagen, 777 F.2d 1056 (5th Cir. 1985), appears not to
have even considered the possibility of fundamental defect
analysis, and in any event concerned an egregious violation of
one of the IAD‘'s time provisions (trial did not occur for
two-and-one-half years after the defendant requested trial). We
are confident that under Sassoon v. Stynchombe, 654 F.2d 371,
374-275 (Sth Cir. 1981), the court would have at least examined
the existence of prejudice if the issue had been presented.
o)2-
at 12869 n. 9, the Casper decision at least opens the door to a
finding that the suggestion was dictum.
The situation in the Seventh Circuit is even less
clear, since no published court of appeals decision has even
reached the point of discussing whether an IAD violation is a
"fundamental defect." The fact that the court has examined the
merits of such issues does not by itself establish that the
Seventh Circuit would grant the writ without a showing of
prejudice.
Thus the present state of the issue in the Circuits is
that no court of appeals has actually granted habeas corpus
relief on a nonprejudicial IAD violation, and only in dicta has
the Third Circuit indicated that it might do so in the future.
Moreover, there is no question that every court of appeals would
authorize habeas relief upon a finding of prejudice. Until the
cognizability issue actually results in the uneven granting or
denial of habeas relief, there is no need for resolution of the
issue by this Court.
111. THE MAJORITY POSITION FOLLOWED BY THE SIXTH CIRCUIT IN THIS
CASE IS A CORRECT INTERPRETATION OF THIS COURT'S PRECEDENTS.
In Hill v. United States, 368 U.S. 424 (1962), a
§ 2255 petitioner sought relief on the ground that he had been
denied the opportunity to make a statement at his sentencing
hearing, as required by Fed. R. Crim. P. 32(a). This Court
stated:
The failure of a trial court to
ask a defendant represented by an
attorney whether he has anything to say
before sentence is imposed is not of
itself an error of the character or
magnitude cognizable under a writ of
habeas corpus. It is an error which is
neither jurisdictional nor
constitutional. It is not a
fundamental defect which inherently
results in a complete miscarriage of
justice, nor an omission inconsistent
elSe~
with the rudimentary demands of fair
procedure. It does not present
“exceptional circumstances where the
need for the remedy afforded by the
writ of habeas corpus is apparent.”
368 U.S. at 428, quoting from Bowen v. Johnston, 306 U.S. 19, 27
(1939). The Court concluded that “collateral relief is not
available when all that is shown is a failure to comply with the
formal requirements” of a procedural rule, and in the absence of
“other aggravating circumstances.” Id. at 429.
This language was relied upon in Davis v. United
States, 417 U.S. 333 (1974), in which a § 2255 petitioner sought
relief on a claim as to which the law had changed after his
conviction. After rejecting the government's assertion that
§ 2255 applies only to constitutional violations, the Court
noted that the inquiry did not end there:
This is not to say, however, that
every asserted error of law can be
raised on a § 2255 motion. In Hill v.
United States [supra], for example, we
held thet “collateral relief is not
available when all that is shown is 4
failure to comply with the formal
requirements” of a rule of criminal
procedure in the absence of any
indication that the defendant was
prejudiced by the asserted technical
error. We suggested that the
appropriate inquiry was whether the
claimed error of law was “a fundamental
defect which inherently results in 4
complete miscarriage of justice,” and
whether “{iJt . . . present(s)
exceptional circumstances where the
need for the remedy afforded by the
writ of habeas corpus is apparent.”
417 U.S. at 346. The same language was relied upon again most
recently in a guilty plea case, United States v. Timmreck, 441
U.S. 780, 783-785 (1979).
In Stone v. Powell], 428 U.S. 465 (1976), the Court
ruled that habeas corpus relief would not extend to asserted
violations of the Fourth Amendment exclusionary rule. The Court
noted with approval arguments that habeas corpus will relieve
eiée
only from those errors which “impugn the integrity of the
fact-finding process or challenge evidence as inherently
unreliable.” 428 U.S. at 479. The Court also referred to the
above-quoted language in Hil] and Davis. Id. at 477 n. 10.
Even outside the strict setting of the writ of habeas
corpus the Court has recognized the importance of a harmless
error rule, even where the error is of constitutional
dimension. The harmless error doctrine
recognizes the principle that the
central purpose of a criminal trial is
to decide the factual question of the
defendant's guilt or innocence ..
and promotes public respect for the.
criminal process by focusing on the
underlying fairness of the trial rather
than on the virtually inevitable
presence of immaterial error.
Delaware v. Van Arsdall, 475 U.S. , » 106 S.Ct. 1431,
1436-1437, 89 L.Ed.2d 674 (1986); Rose _v.
Clark,
U.S. 106 S.Ct. 3101, 3105-3107 (1986).
There is no reason why these principles should not
apply equally to alleged violations of the trial-before-return
provisions of the IAD. While the IAD promotes salutary policies
relating to rehabilitation of prisoners and resolution of
pending charges, see United States v. Mauro. 436 U.S. 340,
349-353, 359-360 (1978), these policies are by themselves
irrelevant to the determination of whether a prosecution was
fundamentally fair. Fasano v. Hal], 615 F.2d 555, 559 n.* (lst.
Cir.), cert. denied 449 U.S. 867 (1980); Bush v. Muncy, 659 F.2d
402, 409 (4th Cir. 1981), cert. denied 455 U.S. 910 (1982),
United States v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979).
This is particularly true in trial-before-return cases
such as is presented by the instant petition. As noted in Part
II above, there is some disagreement over the speedy trial
implications of the IAD time provisions. However, the
_"s
petitioner in this case has not alleged such a violation, and
resolution of that disagreement would not be presented by this
case.
In fact, the petitioner has made no allegation of
prejudice at trial whatsoever. He has not alleged that his
returns to federal custody or the delay in trial impeded his or
counsel's investigation and preparation in any way, or that any
potential witness was lost to petitioner as the result of the
alleged IAD violations. The suggestion thet mere technical,
pretrial violations of the IAD would justify collateral vacation
of the petitioner's armed robbery, burglary, and habitual
criminal convictions runs contrary to this Court's precedent
cited above, and would trivialize the Great Writ.
Furthermore, the district court (through adoption of
the report and recommendation of the magistrate) found that the
petitioner did not even suffer “any loss of enjoyment of federal
prison programs” or any “sentencing problems” as a result of the
shuttling. App. C-19. Two courts of appeals have suggested in
dicta that the requisite prejudice might include a showing of
prejudice to a defendant's prison status. Mars v. United
States, 615 F.2d 704, 707 (6th. Cir.), cert. denied 449 U.S. 849
(1980); Huff v. United States, 599 F.2d 860, 863 (8th Cir.),
cert. denied 444 U.S. 952 (1979). This subissuve is not
presented by this case, and in any event has not developed among
the Circuits to the point where a split of authority exists.
ole
CONCLUSION
The petition for the writ of certiorari should be
denied.
W. J. MICHAEL CODY
Attorney General and Reporter
JERRY L. SMITH
Deputy Attorney General
stant Attorney General
ounsel of Record
450 James Robertson Parkway
Nashville, Tennessee 37219-5025
(615) 741-6421
Counsel for Respondents
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Brief in
Opposition has been forwarded by first-class U.S. Mail to Mr.
Lionel R. Barrett, Jr., Fifth Floor, 207 Third Avenue North,
Nashville, Tennessee 37201 on June fs. 1988.
Vea
WAYN . UH
A stant Attorney General
o17-
672 835 FEDERAL REPORTER, 24 SERIES
sonable basis in law and fact See, ¢9.,
Trident Marine, 766 F.2d at 980. Whether
we will continue to apply that standard or,
instead, require a higher standard, is cur-
rently the subject of an en banc review by
the court in Riddle v. Secretary of Health
& Human Serv., 823 F.2d 164 (6th Cir
1987). However, we do not think it neces
sary to wait for the en banc decision be
cause the position of the United States in
this case did not satisfy even the lower
standard of reasonableness.
Counsel for the IRS took the position in
district court that issuance of the February
28 letter was a mistake which was correct:
ed by the March 27 letters. However, no
proof was offered that the earlier letter
was, in fact, the product of mistake. No
explanation was tendered of what the IRS
meant by “administrative error” or how
the letter could have been “mistakenly
sent” under IRS procedures. There was no
basis upon which the ciserict court could
conclude that a mistake had occurred;
there was only the unsupported assertion
of the government in its memoranda of
law. In the absence of any evidence or
explanation tending to show administrative
error and mistake, the district court was
warrantéé in rejecting the IRS's disingenu
ous argument. Accordingly, the district
court did not abuse its discretion in finding
that the position of the United States was
not substantially justified and in awarding
attorney fees to the taxpayer
The IRS's argument, that the district
court improperly awarded fees incurred
during periods when the position of the
United States was reasonable, is waived
since it was not adequately raised below, it
was first called to our attention in the
government's reply brief
The order of the district court is af
firmed
Douglas Vincent METHENY,
Petitioner-Appeliant,
MLC. HAMBY, Warden; and William M.
Leech, Attorney General of the State of
Tennessee, Respondents-Appellees.
No. 86-5974.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 6, 198°
Decided Dec. 22, 1987
State prisoner filed petition for writ of
habeas corpus, alleging state had vwlated
trial-before-return provision of Interstate
Agreement on Detainers. The United
States District Court for the Middle Dis
trict of Tennessee, Thomas A. Wiseman
Jr., Chief Judge, denied petition, and pris
oner appealed. The Court of Appeals, Alan
E. Norris, Circuit Judge, held that state's
claimed violation of trial-before-return pro-
vision of Interstate Agreement on Detain
ers was not fundamental! defect cogmzabie
in federal habeas corpus. proceeding, ab
sent exceptiona] circumstances
Affirmed
Habeas Corpus @°45.2(4)
State prisoner's claim that state had
violated trial-before-return provision of In
terstate Agreement on Deta:ners was not
fundamental defect cognizable in federal!
habeas corpus proceeding, absent excep
tional circumstances. 28 U.S.C.A. §§ 2254
2255; T.C.A. §§ 40-31-101, 40-31-101, Art
1Vie)
Lionel R. Barrett, Jr. (argued), Nashville
Tenn., for petitioner-appeliant
W.J. Michael Cody, Atty Gen., Nashville
Tenn., Wayne E. Uhi (argued), for respor
dents-appellees
Before JONES and NORRIS, Circuit
Judges, an’ PECK, Ser
Judge
or Uircuit
> ery
"SO OTF, Wha
MATHENY v. HAMBY 673
Cite a0 835 F.2d 672 (ech Cir 1987)
ALAN E. NORRIS, Circuit Judge.
Petitioner, Douglas Metheny, while in
State custody as the result of felony convic-
Bons, filed @ petition for a writ of habeas
lated the tral-before-return Provision of
Article IVie) of the Interstate Agreement
on Detainers (“IAD”) by returning him to
federa! custody from state custody without
Proceeding to trial on the State charges.
He appeals the denial of his petition by the
district court.
The threshold issue for our determina-
ton is whether Metheny’s claimed violation
of the IAD is cognizable under 28 USC
§ 2254. For if his claim 8 not cognizable,
then the district court should be affirmed
and we need not reach the other questions
raised in the appeal—whether the state ac
tually violated the IAD and, if so, whether
Metheny waived any violation
Metheny claimed that the state violated
Article IV(e) of the IAD by returning him
to federal custody from State custody on
several occasions without proceeding to tn-
al on the state charges. Custody had been
obtained by the state for proceedings pre
uminary to trial, pursuant to writs of habe
SS corpus ad proveguendum directed to
federal prison authorities. The feders!
government is a party to the IAD Methe
ny argued that Tennessee, also o party to
the IAD, had lodged detainer against him
with federa! authorities as contemplated by
the Agreement, and that the state's con-
duct violated Article Vie)
If trial is not had on any indictment,
information or complaint contemplated
hereby prior to the prisoner's being re
turned to the original place of imprison
ment pursuant to article Vie) hereof
such indictment, information or com
piaint shall not be of any further force or
effect, and the court Shall enter an order
dismissing the same with prejudice
Tenn.Code Ann. § 40-31-101 (1989)
In Mars v. United States, 615 F.2d 704
Cir.1980), cert. denied 449 US. 849
101 S.Ct. 138, 66 L.Ed 24 60 (1980), we held
that violation of the JAD was not cogniza
a
ble under 28 U.S.C § 2255, where a federal
prisoner sought postconviction relief on the
basis of a violation by the United States of
Article IV(e) of the LAD Mars was serv-
ing & prison term ip Michigan when the
Relying upon the Supreme Court's Opin-
ion in Davis v. United States, 417 U.S. 333
94 S.Ct 2298 41 L.Ed 24 109 (1974), we
held that Mars’ claim was not cognizable
under 28 USC § 2255 because the claimed
error was not a fundamenta! defect which
inherently results in a complete miscar
rage of justice, and did not present excep
tional circumstances where the need for
the remedy afforded by the writ of habeas
Corpus i8 apparent. 615 F.2d at 707
Because the error claimed by Metheny
rises to no higher a level of sernousness
than that claimed by Mars, we must deter
mine if a different standard should be ap
Plied in this appeal! solely because Metheny
8 IN State custody and seeks federa) habe
&s corpus relief under 28 U.S.C § 2254
We discern no reason to apply a higher
standard than the one set out in Davis, and
which we applied in Mars to a federa) pris
oner seeking relief under 28 USC § 2255
Certainly considerations of comity and fed
eralism argue for that result. See Francis
v. Henderson, 425 US 536, 541-42, 96
S.Ct. 1768 1711, 48 Ed 2d 149 (1976)
The Supreme Court h on numerous occa
sions commented upon similarities betweer
the relief available under 28 1: S.C. § 2255
and habeas corpus noting that 28 US ¢
§ 2255 provides to the sentencing court the
remedies which are available by habeas
corpus in the court of the district where +} ‘
prisoner is confined. See ¢ g.. Davis ;
United States. 417 | >. at 343-44, 94 S Cr
at 2304; Hil/ United States, 368 1 <
24, 427, 82 Sc 468, 471, 7] Ed. 2d 4
(1962); Heflin » Un fed States, 358 1
674 835 FEDERAL REPORTER, 2d SERIES
415, 79 S.Ct 451, 3 L.Ed.2d 407 (1959),
concurring opinion of five Justices at 421,
79 S.Ct at 454; United States v. Hayman,
342 U.S. 205, 219, 72 S.Ct 263, 272, 96
L.Ed. 232 (1952). Because 28 U.S.C.
§ 2255 is “the mouern postconviction proce-
dure available to federal prisoners,” Stone
v. Powell, 428 U.S. 465, 479, 96 S.Ct. 3037,
3045, 49 L.Ed.2d¢ 1067 (1976), and therefore
offers a wide range of postconviction relief
remedies, the relief available to a state
prisoner under 28 U.S.C. § 2254 is narrow-
er in scope, since it provides only for habe-
as corpus relief when custody is in violation
of the Constitution, laws, or treaties of the
United States. Accordingly, principles of
comity dictate that a higher standard of
cognizability be required of errors alleged
by prisoners who are incarcerated as the
result of state court proceedings, especially
when one considers that a state prisoner
has had available to him state postconvic-
tion procedures. See 428 U.S. 465, 96 S.Ct
at 3037-38; Niziolek v. Ashe, 694 F.2d 282
(ist Cir.1982)
Our conclusion, that Metheny’s claim of
a state violation of Article 1V(e) of the IAD
is not cognizable under 28 U.S.C. § 2254, is
supported by positions taken by the First
Circuit in Fasano v. Hall, 615 F.2d 555 (1st
Cir.1980), cert denied, 449 U.S. 867, 101
S.Ct. 201, 66 L.Ed.2d 86 (1980), the Fourth
Circuit in Kerr v. Finkbeiner, 757 F.2d 604
(4th Cir.1985), cert. denied, 474 U.S. 929,
106 S.Ct. 263, 88 L.Ed.2d 269 (1985) and
Bush v. Muncy, 659 F.2d 402 (4th Cir
1981), cert. denied, 455 U.S. 910, 102 S.Ct
1259, 71 L.Ed.2d 449 (1982), and the Ninth
Circuit in Carlson v. Hong, 707 F.2d 367,
868 (9th Cir.1983), but cf Tinghitella v
California, 718 F.2d 308 (9th Cir.1983) (vio
lation of LAD time provisions is a cogniza-
ble defect). In addition, three other cir-
cuits have concluded that, in the absence of
exceptional circumstances, violation of the
IAD is not cognizable under 28 USC
§ 2255: Edwards v. United States, 564
F.2d 652 (2d Cir.1977); Huff « United
Svates, 599 F.2d 860 (8th Cir. 1979), cert
denied, 444 U.S. 952, 100 S.Ct. 428, 62
L.Ed.2d 323 (1979); Greathouse v. United
States, 655 F.2d 1032 (10th Cir.1981), cert
denied, 455 U.S. 926, 102 S.Ct. 1289, 71
L.Ed.2d 469 (1982).
Opinions of other circuits are cited as
having arrived at a contrary conclusion.
However, the Seventh Circuit, in arriving
at that conclusion in Wedd v. Keohane, 804
F.2d 413 (7th Cir.1986) and Echevarria v.
Bell, 579 F.2d 1022 (7th Cir.1978), did not
undertake the two-step analysis we found
mandatory in Mars, and which also has
been utilized by the First, Second, Fourth,
Eighth, Ninth, and Tenth Circuits in the
cases cited above. The courts in the Sev-
enth Circuit cases satisfied the first step of
the analysis by determining that the IAD is
a law of the United States for purposes of
federal habeas corpus jurisdiction. How-
ever, the Supreme Court has cautioned that
the inquiry should not stop there, since not
every asserted error of federal law can be
raised on a request for habeas corpus re-
lief. Instead, it must be determined that
the claimed error is a fundamental defect
which inherently results in a complete mis-
carnage of justice and presents exceptional
circumstances where the need for the rem-
edy afforded by habeas corpus is apparent.
Davis v. United States, 417 U.S. at 346, 94
S.Ct. at 2305. Because the Seventh Circuit
did not undertake this second step of the
analysis, its opinions properly should be
cited as jurisdictional, not cognizability
holdings
The Third Circuit, in United States v
Williams, 615 F.2d 585 (3d Cir.1980), did
follow the two-step analysis in determining
that a violation of Article Vie) of the IAD
is cognizable under 28 U.S.C. § 2255, con-
cluding that such a violation amounts to a
fundamental defect. The conclusion in
Williams is, of course, the opposite conclu
sion from the one we arrived at in Mars,
but we continue to believe our conclusion in
Mars was correct. The Willams court
could find nothing to warrant treating &
claimed IAD error under 28 USC. § 2255
differently than one raised under 28 U.S.C
§ 2254, citing its earlier opinion in Es
Groomes, 520 F 2d 830 (3d Cir 1975). We
note that the Third Circuit has recently
held that not a ations of the IAD are
fundamental! defects’ and thus cognizable
a
-
°
£
Vial Vs tee
HOLLAND v. C.LR. 675
Cite as 835 F.2d O75 (th Clr. 1987)
under 28 U.S.C. § 2254. Casper v. Ryan,
822 F.2d 1283 (3d Cir.1987)
Because we are persuaded that our hold-
ing in Mars remains sound, and that a
lower standard of cognizability should not
be applied to claims brought by a state
prisoner pursuant to 28 U.S.C. § 2254, we
join the clear majority of the circuits in
holding that. in the absence of exceptional
circrmstances, a claimed violaton of Art-
cle [Vie) of the LAD is not a fundamental
defect which is cognizable under 28 U.S.C.
§ 2254. We therefore affirm the order of
the district court
Edward J. HOLLAND, Jr.,
Petitioner-Appellant,
COMMISSIONER OF INTERNAL
REVENUE, Respondent-Appellee.
No. 86-1647.
United States Court of Appeals,
Sixth Circuit
Argued Nov. 5, 1987
Decided Dec. 23, 1987
Rehearing Denied Feb. 17, 1988.
Taxpayer sought redetermination of in-
come tax deficiency. The United States
Tax Court, Whitaker, J., determined add>-
tions to taxpayer's liability, and appeal was
taken. The Court of Appeals found that,
while trial court’s procedure PL calling
handwriting expert to determine authentici-
ty of documents presented by taxpayer was
somewhat unusual, procedure substantially
complied with requirements of Federa!
Rules of Evidence
Affirmed
* The Honorable John W. Potter, Judge. United
States District Court for the Northern District of
Internal Revenue €°4655
Tax court's procedure, in suggesting
that government procure handwriting ex-
pert witness to examine taxpayer's pur-
ported documentation of his claimed deduc
tions, though unusual, was not reversible
error where procedure substantially com-
plied with rule of evidence pe ‘mitting court
to call wimesses on its own motion and
allowing court to interrogate witnesses,
court properly sought expert advice to
avoid what might otherwise have been
fraud upon court Fed Rules Evid Rules
6l4(a, b), 706(a), 28 U.S.C.A.
Stanley H. Pitts, Frederick A. Patmon
(argued), Detroit, Mich., for petitioner-ap
pellant.
Jean Owens, Acting Counsel, IRS, M+
chael L. Paup (Lead Counsel), Roger M.
Olsen, Tax Div.—Dept of Justice, Wash-
ington, D.C., Charles E. Brookhart, Joan I.
Oppenheimer (argued), for respondent-ap
pellee
Before ENGEL and KENNEDY,
Cireuvit Judges, and POTTER, District
Judge.”
PER CURIAM
This is an appeal from a decision of the
United States Tax Court redetermining the
income tax deficiency and determining ad-
ditions to the tax liability of petitioner-ap-
pellant Edward J. Holland, Jr. The Tax
Court’s opinion is published at Holland v.
Commissioner, 51 T.C.M. (CCH) 172
(1985).
On July 14, 1982 the Internal Revenue
Service sent Holland a notice of deficiency
for the 1977 and 1978 tax years disallowing
a number of claimed deductions. The defi-
ciency was assessed on the basis of Hol-
land's failure to prove that the transactions
alleged in those deductions ever occurred
Holland then petitioned the tax court for a
redetermination of his tax lability on Octo
ber 9, 1982
Ohio, sitting by designation
A-4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE,
COLUMBIA DIVISION
RECEIVED FOR ENTRY
_M
DOUGLAS VINCENT METHENY
AUG 13 1386
v. ) NO. 1-84-0003 a OSE
) ° nA
Y
LARRY LACK, Warden } B =
ORDER é
This cause came on for oral argumert on petitioner's objections to the Report
and Recommendation of the Magistrate on August 7, 1986. Upon consideration of the
briefs filed herein and the arguments of counsel in open Court, this Court is of the
opinion that the Magistrate's Report and Recommendation is correct in both law and
fact. This Court adopts the Magistrate's Report and Recommendation as its findings
(Eo
of fect and conclusions of law.
The petition is therefore dismissed.
CHIEF JUDGE
APPENDIX B Auc 13 1686
IN THE UNITED STATES DISTRICT COURT x F j : E C
FOR THE MIDDLE DISTRICT OF eaetate re
NASHVILLE DIVISION
DOUGLAS VINCENT METHENY
Petitioner,
No. 1:84-0003
Judge Wiseman
v.
LARRY LACK, Warden
ee eee ee eee ee ee ee
Respondent.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This petition was referred to the Magistrate by the Honorable Thomas A.
Wiseman, Jr., Chief Judge, by Order dated December 13, 1984. The Magistrate was
directed to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b)1XB).
Counsel was appointed to represent the Petitioner. In light of the length of petitioner's
state court proceeding and the complexity and multiplicity of Petitioner's claims, hearings
on this petition were continued at petitioner's request on several occasions.
The first hearing was held on September 30, 1985, on the respondent's
"procedural default" defense to several of Petitiuner's claims.! The second hearing was
held on Jar. ary 10, 1986, and focused upon the Petitioner's claim of a violation of te
Interstate * greement on Detainers Act (hereinafter "IAD"), 18 U.S.C. App. Art. I, et. :
that was cr nceded by the Respondent to be proper for federal habeas corpus review.
lgee, Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980) cert. denied 450 U.S.
933, 101 S.Ct. 1395-87 L-EG74 367 38 “Ed.2d 1). ee
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APPFNDIX C
C-1
For the reasons set forth below, the Magistrate recommends that Metheny's
petition for the writ of habeas corpus be denied. The Magistrate finds that no IAD
violation is presented under the facts or the applicable law. Further, the Magistrate finds
that except for his IAD and certain other claims that were raised on direct appeal,
Metheny's claims are barred from federal habeas corpus review due to Metheny's failure to
raise these issues on direct appeal of his state court convictions; Metheny's procedural
default for his failure to appeal to the Tennessee Supreme Court on the denial of his state
post-conviction petition; and Metheny's failure to satisfy the “cause and prejudice”
standard in this federal proceeding for these procedura! defaults.
fl. PROCEDURAL HISTORY OF METHENY'S CLAIMS
Petitioner, Douglas Metheny (hereinafter "Metheny" is a state prisoner who has
been convicted of crimes in the federal and state courts. This is Metheny's first
application for federal habeas corpus relief? challenging his Tennessee convictions of
armed robbery, burglary in the first degree and as an habitual criminal. In the hearing,
Metheny focused upon his principal claim that was an alleged violation of the Interstate
Agreement on Detainers Act. (hereinafter referred to as IAD or Agreement) under 18
U.S.C. Appendix Art. I. et. seg (1985).
Metheny's IAD claim was among the several claims that Metheny presented in
his motion for a new trial at the state trial “ourt and in his direct appeal to the Tennessee
Court of Criminal Appeals. See, Metheny v. State, 589 S.W.2d 943 (Tenn. Crim. App.
19749). Metheny's application for permission to appeal to the Tennessee Supreme Court was
2Metneny also raised the IAD issue in the United States District Court in
Kansas where he was held in federal custody, but that District Court declined to entertain
Metheny's habeas petition for lack of exhaustion of state remedies under 28 U.S.C.
§ 2254(b), in light of Metheny's pending state court proceedings in Tennessee. Metheny v.
oe No. 78-3136, Unite® States District Court for the District of Kansas, Memorandum
and Order filed June 12, 1978. Petitioner's Exhibit No. 5.
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denied on October 22, 1979. The United States Supreme Court denied certiorari on April
14, 1980. Metheny v. Tennessee, 445 U.S. 967, 100 S.Ct. 658, 64 L.Ed.2d 243 (1980). State
post-conviction proceedings were initiated by Metheny with court appointed counsel and
post-conviction relief was denied by the state trial court and Court of Criminal Appeals.
No appeal of the Court of Criminal Appeals’ decision on the denial of post-conviction relief
was pursued in the Tennessee Supreme Court. The State concedes that Metheny has
exhausted his state remedies on the IAD issue. F sse v. Lundy, 455 U.S. 509, 102 S.Ct.
1198, 71 L.Ed.2d 519 (1982).
fl FINDINGS OF FACT
A. The Procedural Default Issues
The bases for the State's "procedural default" defense arises from Metheny’'s
failure to raise certain issues on his direct appeal in the state courts and to file an
application for permission to appeal to the Tennessee Supreme Court on the denial of his
post-conviction petition by the state trial court and the Court of Criminal Appeals. For
these failures, the State contends that Metheny is barred from presenting several of his
claims in this federal proceeding under the "Procedural Default" principles.
On his direct appeal of his state convictions, Metheny raised six issues: (1) the
alleged IAD violation; (2) the prosecutor's alleged breach of a plea agreement; (3) the trial
court's failure to give a criminal trespass charge to the jury; (4) the inclusion of foreign
felony crimes, that would be misdemeanors in Tennessee, for jury deliberation on the
habitual criminal charge; (5) the prosecutor's alleged non-compliance with the trial court's
discovery order on production of Metheny's foreign convictions and the applicable foreign
statutes; and (6) the unconstitutionality of the Tennessee habitual criminal statute on its
face and as applied. (Court Document No. 12, pp. A-9-10).
In his state post-conviction proceeding, the Court of Criminal Appeals
entertained the following claims: (1) alleged ineffective assistance of Metheny's counsel at
Metheny's preliminary hearing and trial; and (2) the alleged denial of Metheny's right to
represent himself. The Court of Criminal Appeals held to be meritless as previously
determined on direct appeal, Metheny's claims of (1) the alleged IAD violation; (2) the
alleged failure of the state to honor a plea agreement; (3) the trial court's refusal to givea
criminal trespass instruction; (4) an alleged error on consecutive sentencing; (5) the
invalidity of certain underlying convictions for Metheny's habitual criminal conviction; (6)
the constitutionality of the Tennessee habitual criminal statute; and (7) the State's non-
compliance with the trial court's discovery order. (Court Document No. 12, pp. B-41-42).
Except as noted above, the Court of Criminal Appeal also found a waiver of any other
issues in Metheny's post-conviction petitions that were not raised on direct appeal. (Court
Document No. 12, p. B-42).
These latter claims that were not raised on direct appeal and that are raised in
this petition include Metheny's allegations of ineffective assistance of counsel at his
criminal trial; the state trial court's alleged erroneous refusal to order a psychiatric
examination for Metheny's competency to stand trial; an alleged double jeopardy violation
for separate convictions of burglary and armed robbery under the same facts; the invalidity
of Metheny's habitual criminal conviction because some of Metheny's underlying
convictions were obtained without representation by counsel; the alleged lack impartiality
of the trial judge; and the improper dismissal of prospective jurors.
Metheny claims that he did not raise certain of these issues at his trial or on
direct appeal because of his counsel's decision and counsel's election of which issues to
raise at trial and on direct appeal of Metheny's conviction. The other issues that were
raised in post-conviction were not raised for the same reasons. (See Court Document No
28 and Attachments thereto). Metheny's application for permission to appeal the denial of
«ge
his post-conviction petition to the Tennessee Supreme Court was not filed allegedly due to
the destruction of the Turney Center library from an inmate disturbance. However,
Metheny who was informed of the appeal process to the Tennessee Supreme Court and the
deadlines therefor, had ample time to apply for an extension of time in which to file his
application for permission to appeal to the Tennessee Supreme Court. See, Rule 11(b)
Tennessee Rule of Appellate Procedure (Supp. 1985). Metheny is described as an intelligent
person who has proceeded pro se in the federal and state courts.
™ any event, the erticial procedural default arises from Metheny's failure to
raise the issues in this petition on his direct appeal of his state court convictions.
B. Metheny's IAD Claim
From the evidentiary hearing and records in the matter, the Magistrate finds
the following facts on Metheny's IAD claim.’ In January, 1977, Metheny was charged with
the crimes of burglary and urmed robbery. Metheny was apprehended in Natchez,
Mississippi on March 23, 1977, by federal authorities. During this time, Metheny was
charged also by federal authorities with the i: terstate transportation of stolen goods.
On May 11, 1977, a writ of habeas corpus ad prosequendum was issued to the
United States Marshal for the Eastern District of Tennessee for Metheny's state court
appearance. (See, Respondent's Documents No. 1 and 2). The federal authorities
recognized the writ. Metheny had been granted a preliminary hearing by the state court
that was held on May 13, 1977.
On May 19, 1977, after the state preliminary hearing, Metheny was convicted
on the federal charges, and sentenced to Fort Leavenworth Penitentiary. (See Court
Document No. ___).
3as noted supra, ime vuytistrate finds that Metheny Nad exhausted nis IAD
claims in the state courts.
A second state court writ of habeas corpus ad prosequendum was issued to the
United States Marshal for the Eastern District of Tennessee om June 30, 1977, for
Metheny's appearance before the state grand jury. (Court Document No. 37, pp. 4-7). (See,
Respondent's Documents No. 4 and 5). Metheny was in federal custody of the Federal
Bureau of Prisons in Kansas, but this writ also was honored by the federal authorities.
On July 11, 1977, Metneny was indicted by the Anderson County Grand Jury for
armed robbery and burglary in the first degree. (See, Court Document No. 37, pp. 8-16).
On July 29, 1977, Metheny appeared in the Criminal Court of Anderson County for an
arraignment, a bond determination, and setting of his charges for trial. (See Court
Document No. 37, pp. 17-19).
At his arraignment, Metheny and his counsel announced to the Court that they
wanted Metheny's trial postponed for severe! months because Metheny was to undergo
surgery at the federal facility. (See Court Document No. 37, pp. 17-19). The state trial
court explained to Metheny his right to a speedy trial and thereafter, continued Metheny’'s
trial. Id. at 18. (See also Petitioner's Exhibit No. 3). After the arraignment, Metheny was
returned to Federal custody in Leavenworth, Kansas.
On October 24, 1977, an order was entered by the Anderson County Criminal
Court Judge reflecting that Metheny's cases appeared on the docket that date and that the
cases were still pending before the Court. The Order indicated that the state court Judge
continued Metheny's cases fcr a period of six (6) months after hearing proof on Metheny’'s
request. (See Respondent's Document No. 19). The Order set Metheny’'s trial on state
charges for January 23, 1978. Id. at 19.
On October 28, 1977, Metheny filed a motion to dismiss all of the state charges
because he had been Drought before the state criminal courts on three separate occasions
through @ state court's writ of habeas corpus ad prosequendum and he hed not been Drought
to trial in violation of the IAD. Metheny’s motion was heard by the state court on January
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23, 1978. The state trial court denied the motion, finding that the IAD did not apply toa
writ of habeas corpus ad prosequendum. (Court Document No. 37. pp. 22-24).
A third state court writ of habeas corpus av prosequendum was issued by the
Anderson County Court on April 28, 1978, to the United States Marshels in Tenyessee and
Kansas and the Warden at Fort Lavenworth Penitentiary. (Court Document No. 27, pp. 28-
31). This third writ requested custody of Metheny so that he could be available for
consultation with his defense counsel on Mey 2, 1978 and also to be present for trial on May
16 and 17, 1978. (Court Document No. 37, pp. 28-31). Again, the federal authorities
recognized the writ. However, due to an apparent delay in trial, Metheny was not
transported until July 5, 1978.
The evidence at Metheny’'s trial was that Metneny entered into the occupied
residence of Clyde and Myrtle Welch during the night and by use of a deadly weapon, a
pistol, forcibly took and carried away Welch's personal property. At the end of the trial,
Metheny renewed his motion to dismiss the charges because of alleged violations of the
IAD. The trial court denied the motion and Metheny was convicted of armed robbery,
burglary in the first degree, and of being a habitual criminal. (See, Court Document No.
37, pp. 46-49). A motion for a new trial was denied by the trial court.
IV. CONCLUSIONS OF LAW
A. The Procedural Default issues
In the analysis of @ procedural default issue in a federal nabeas corpus
Proceeding, the recent decision of the Court of Appeals for the Sixth Circuit in Maupin v.
Smith, No. 84-5446 (filed March 5, 1986), states that the following analysis is required for
such issues:
First, the Court must determine that there is @ procedural rule
that is applicable to the petitioner's claim and that the petition
failed to comply with that rule. . .
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Second, the Court must decide whether the State courts actually
enforced the state procedural sanction. . .
Third, the court must decided whether the state procedural
forfeiture is an ‘adequate and independent state ground upon
which the state can rely to close review of a state prosecutional
claim [citation om'tted). This question generally will involve an
examination of the legitimate state interest behind the state
procedural rule behind the procedural rule in light of the federal
interest in considering federal claims. . .
Once the court determines that a procedural rule was not
comglied with and that rule was an adequate and independent
state ground, then the petitioner must demonstrate under
(Meinerght vy. Sykes, 433 U.S. 72, 87, L.Ed.24d__, §.Ct.
ie, that there was ‘cause for him not fo follow the
procedural rule and that he was actually prejudiced by the alleged
constitutional error. [citations omitted) .
Maupin v. Smith, Slip Opinion at pp. 4-5.
As noted, on the procedural default issues, the Magistrate finds that the
appropriate legal standard for the evaluation of this claim is the "cause and prejudice”
standard of Wainwright v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97 S.Ct. 2497 (1977); Leroy v.
Marshall, F.2d (6th Cir. 1985). See also Gilbert v. Parke, 763 F.2d 821 (6th Cir.
1985); Shepard v. Foltz, 771 F.2¢ 962 (6th Cir. 1985). See also, Raper v. Mintzes, 706 F.2d
161 (6th Cir. 1983); Hockenbury v. Sowder, 620 F.2d 111, 115 (6th Cir. 1980) cert. denied
450 U.S. 933, 101 S.ct. 1395, 67 L.E¢.24 367 (1981). Further in Wainwright v. Sykes, supra,
the Supreme Court noted that this "cause and prejudice” standard may apply to "decisions
of counsel relating to trial strategy.” 433 U.S. at 91, n.14, 53 L.Ed.2d 594, 97 S.Ct. 2508.
In Reed v. Ross, 467 US. , _——L.Ed.2d __,-:104 S.Ct. 901 (1980), this suggestion
became «@ holding. In Payne v. Reese, 738 F.2d 118 (6th Cir. 1984), the Court of Appeals
affirmed the denial of habeas corpus relief to a state prisoner who failed to raise certain
issues in the direct appeal of his conviction.
Except for Metheny's claims of an IAD violation; prosecutorial misconduct;
unconstitutional habitual criminal statute; inadequate jury instructions; and effective
assistance of trial court counsel claims, the Magistrate finds that Metheny's other claims
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are not proper for consideration due to his procedural defaults. In this context, the
Magistrate finds that under Reed v. Ross, 467 U.S. =, ___—sL.Ed.2d __, 104 S.Ct. 901
(1984), Metneny has not satisfied the initial showing of adequate cause for his failures
either to appeal all of these claims on direct appeal and for his failure after denial of post-
conviction petition to apply for an appeal to the Tennessee Supreme Court.
Under Maupin v. Smith, supra, analysis, the Magistrate finds first that the
Court of Criminal Appeals’ decision on Metheny's post-conviction proceedings clearly found
that Metheny waived several issues that had not been raised on direct appeal. This waiver
and preclusion is state decisional law and statutory policy. Arthur v. State, 483 S.W.2d 95
(Tenn. 1972); Tenn. Code Ann. § 40-30-112(aXb), that was found to have been violated by
Metheny.
Second, the Magistrate finds that this state procedural rule serves a valid state
interest against truncated and piecemeal appellate review of issues and errors that may
have occurred in a state criminal trial. Gilbert v. Parke, 763 F.2d 821 (6th Cir. 1985). The
federal statutory policy favors full exhaustion of state remedies. 28 U.S.C. § 2254(b). The
federal courts, as a policy matter, favor the allowance of the state courts, the initial
opportunity to correct constitutional errors and violations of federal rights in state
proceedings. Duckworth v. Serrano, 459 U.S. 1, 3, 70 L.Ed.2d 1, 4, 102 S.Ct. 18 (1981).
Adherence to this state policy, will protect fully, a state prisoner's federal claim for
review by the federal courts.
Finally, Metheny’'s failure to raise all of these issues, with the noted exceptions
on his direct appeal in the State courts, was attributed to his trial counsel. Such
attribution does not establish sufficient cause under the cause and prejudice standard.
Reed v. Ross, supra. =
Of tne other exhausted claims, the Magistrate finds that Metheny could not
raise effectively on his direct appeal the alleged ineffectiveness of his trial counsel.
However, the state court did near this claim in the state nearing on Metheny's post-
4-
conviction petition. Metheny has presented nothing to dispute or to challenge the accuracy
of the state court's post-conviction findings that Metheny had effective assistance of
counsel at his trial and upon appeal. (See Court Document No. 12, pp. B-40-47). These
factual findings are presumptively correct. Sumner v. Nata, 449 U.S. 539, 546-47, 66
L.Ed.2d 722, 730-31, 10+S.Ct. 764 (1981); 28 U.S.C. § 2254(d). Nothing has been presented
to rebut the statutory presumption on the correctness of the state court's determination on
Metheny's effective assistance of counsel claim.
Among the claims that were presented to the Court of Criminal Appeals and to
the Tennessee Supreme Court on direct appeal, the Magistrate finds that the claim as to the
state prosecutor's alleged breech of a plea agreement is proper for federal habeas corpus
review. A state prosecutor's withdrawal from a prior settlement agreement does not
constitute @ constitutional violation of Metheny's rights. Mabry v. Johnson, 104 S.Ct. 2543,
2546-47 (1984). In Mabry, Jutice Stevens writing the majority opinion, opined that a
petitioner's acceptance of prosecutor's proposed plea bargain did not create any
constitutional rights to have the bargain specifically enforced. Mabry v. Johnson, 104 S.ct.
2543, 2546-47. A plea bargain standing alone is without constitutional significance; in
itself, it is a mere executory agreement which until embodied in the judgment of the court
does not deprive an accused of any liberty interest or any other const’ uliona.ly protected
interest. Id. It is only when the defendant was not fairly appriseo of its consequences can
his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U.S.
257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
The Tennessee habitual crimina: statute has been constitutional against «
federal constitutional challenge. Mullins v. Davis, 517 F.Supp. 7, 8 (E.D. Tenn. 1980), aff'd
661 F.2¢ 933 (6th Cir. 19861) cert. denied 454 U.S. 1151, 71 L.Ed.2d 306, 102 S.Ct. 1019
(1982). The application of this statute to Metheny does not appear to reach the proportion
of the prejudical magnitude in Solem v. Helm, _—*U.S. __, 88 L.Ed.2d 637, 103 S.Ct. 3001
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(1983). The Magistrate notes that under Tennessee law, Metheny is eligible for release in
thirty (30) years. Tenn. Code Ann. § 40-28-116(b)(10). Finally, the underlying sentences
for Metheny's habitual criminal convictions were for serious crimes, to wit, assault with
intent to commit rape; armed robbery; and first degree burglary.
Finally, the state trial court's failure to give jury charges on the lesser included
offense of criminal trespass does not state a ground for federal habeas corpus relief.
O'Guin v. Floz, 715 F.2d 397 (6th Cir. 1983).
The sole exhausted and proper claim for federal habeas corpus review that
warrants extensive review is Metheny's IAD claim.
B. The State's Alleged Violation of the Interstate Agreement on Detainers
Act (IAD)
Metneny's claim is that his federal rights under the IAD were violated because
he was removed from federal custody and transferred to state custody; and returned to
federal custody on three separate occasions without a trial on the state indictment. The
State does not dispute Metheny's numerous transfers to state custody from federal custody,
but asserts that the transfers were pursuant to a state court's writs of habeas corpus ad
prosequendum and such writs are not detainers within the meaning of IAD. Thus, there was
no IAD violation in Metheny's several transfers to state custody from federal custody as
found by the state courts. At the evidentiary hearing, the State argued that Metheny
waived his rights under the IAD when his state court trial was continued at Metheny’'s
requests.
Thus, in the Magistrate's view, the question presented is whether the IAD was
violated when Metheny was transferred pursuant to the state court's writs of habeas corpus
ad prosequendum and if so, whether any such violation warrants issuance of the writ of
habeas corpus. To resolve this issue, the Magistrate finds that the legal history of the
means of effecting Metneny's transfer to the state court for prosecution must be analyzed.
The Magistrate notes at the outset that a violation of the IAD can be a ground for federal
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habeas corpus relief as a state prisoner would be held in violation of the laws of the United
States as required by 28 U.S.C. § 2254(b). See Carchmanv. Nash, U.S. , __—sS.Ct.
__»___ L.Ed.2d___ (decided July 2, 1985).
1. Tite Non-"xclusivity of the IAD as a procedure to obtain state custody
of a federai prisoner
Prior to the 1970 enastment of the IAD, the writ of habeas corpus ad
prosequendum, that derived from the English system, was employed by federal authorities
to obtain custody of a state prisoner for trial in federal court. United States v. Mauro, 436
U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); Carbo v. United States, 364 U.S. 611, 81
S.Ct. 338, 5 L.Ed.2d 329 (1961). Neither the federal nor state system has abandoned the
English system as to the issuance of the ad prosequendum writs. Carbo v. United States,
364 U.S. at 611, 81 S.Ct. 338, 5 L.Ed.2d 329. Further, in Carbo, the Supreme Court
declared that the federa writ [suffered] no geographical limitation in its use." However,
as to state writs, the Supreme Court stated "[t) hat comity is necessary between
sovereignties in the adm.aistration of criminal justice in our federal-state system is given
full recognition by affording through the use of the writ both respect and courtesy to the
laws of the respective jurisdictions.” Carbo, 364 U.S. at 620, 81 S.Ct. 538, 5 L.Ed.2d 329.
It is important to note that in Carbo, the Supreme Court deemed it unnecessary to decide
what would be the effect of a federal writ of habeas corpus ad prosequendum directed to
state officials absent cooperation because the state officials in Carbo recognized the writ.
While the writ of habeas corpus ad prosequendum was the method employed by
federal courts prior to the IAD, the federal case law reflects that two methods were
utilized by state courts to coewe a federal prisoner for trial, namely, the state writ of
habeas corpus ad prosequendum and a written request filed by the state authority with th
United States Attorney pursuant to 18 U.S.C. § 4085. Dickey y. Florida, 398 U.S. 30, 34,
95 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d
607 (1969); Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922); United
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States v. Trigg, 507 F.2d 949 (6th Cir. 1974), cert denied 420 U.S. 938, 95 S.Ct. 1148, pa
L.Ed.2d__, rehig denied 420 U.S. 998, _—L.Ed.2d__—(1974).
In Ponzi v. Fessenden, Chief Justice Taft, in the opinion of the Court, explained
that there was no express authority that authorized the transfer of custody of a federal
prisoner to a state court for the purpose of giving evidence in court or for trial in state
court, but stated:
Ly] et we have no doubt that it exists and is to be exercised with
the consent of the Attorney General. In that officer, the power
and discretion to practice the comity in such matters between the
federal and state courts is vested. The Attorney General is the
head of the Department of Justice... The trial court is given all
the jurisdiction needed to try and hear [the prisoner) by consent
of the United States, which only insists on the being kept safely
from escape... This arrangement of comity between the two
governinents works “9 no way to the prejudice of the prisoner or
of either sovereign».
Ponzi v. Fessenden, 258 U.S. at 254, 42 S.Ct. 309, 66 L.Ed. 607. Thus, it was established as
a permissible practice for state courts to issue state writs of habeas ad prosequendum to
obtein custody of federal prisoners and such writs were honored by federal authorities as
matter of comity to the States.
Over forty (40) years ‘ater, in a case arising in a Texas state prosecution of a
federal prisoner, a Texas Supreme Court held that Texa. courts could not compel a federal
prisoner to appear for trial. There, because the prisoner was a federal prisoner and
because two separate sovereignties were involved, the Texas state court viewed the issue
as a test of the power and authority of the state, unaided by any waiver, permission or act
of grace of any other authority to compel the prosecution of the prisoner in the state
court. Smith v. Huoey, 393 U.S. 374, 85 S.Ct. 575, 21 L.Ed.2d 607 (1969). Before the
Supreme Court, the State conceded that if it had made an effort to secure a federal
prisoner's appearance, the federal prisoner would have been produced by federal authorities
for trial in state court. Smith v. Hooey, 393 U.S. at 380-81, 85 S.Ct. 575, 21 L.Ed.2d 607.
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This assurance was based upon a memorandum that the Solicitor General filed in the case.
This memorandum was cited in the Supreme Court's opinion and provided, in pertinent part:
It is the policy of the United States Bureau of Prisons to
encourage the expeditious disposition of prosecutions in state
courts against federal prisoners. The normal procedure under
which production is effected is pursuant to a writ of ad
prosequendum from the state court. Almost invariably, the
United States has complied with such writs and extended its
cooperation to state authorities. The Bureau of Prisons informs
us that removals are normally made by the United States
Marshals, with the expense borne by state authorities.
Smith v. Hooey, 393 U.S. 374, 381, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Given the
memorandum submitted by the Solicitor General, the Supr: ne Court concluded that a state
court's writ of habeas corpus ad prosequendum would have been honored, if the state had
sought such a writ. Therefore, the Supreme Court held that a state simply could not ignore
a federal prisoner's request to be brought to trial in the state court. Smith v. Hooey, 393
U.S. 374, 381, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).
Smith v. Hooey, supra, also noted that another procedure that could have been
employed by the state, to effect the transfer of a federal prisoner to state custody for
trial. In a relatively small number of cases, federal prisoners have been produced for state
court prosecutions pursuant te 18 U.S.C. § 4085, that provides, in part:
Whenever any federal prisoner tas been indicted, informed
against, or convicted of a felony in a court of record of any state
or the District of Columbia, the Attorney General shall, if he
finds it in the public interest to do so, upon the request of the
Governor or the executive authority thereof, and upon
presentation of a certified copy of such indictment, information
or judgment of conviction, cause such a person, prior to his
release, to be transferred to a penal or correctional institution
within such State or District. 18 U.S.C. § 4085;
Smith v. Hooey, 393 U.S. at 381, 2.13, 89 S.Ct. 575, 21 L.Ed.2d 607. Apparently, 18 U.S.C.
§ 4085 is not used often because under this federal statutory procedure, differences arise
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as to which sovereign is responsible for the expense involved. Smith v. Hooey, 393 U.S. at
381, 21 L.Ed.2d 607, 895 S.Ct. 5151; Trigg v. State, 507 F.2d at 953.
In sum, these decisions establish that the IAD is not the exclusive means of
effecting the transfer of a federal prisoner to the state court for purposes of prosecution
and the passage of IAD did not abrogate these other custody transfer processes under
appropriate rules of statutory construction.4 "Where Congress has enacted legislation on a
particular subject, as it has for a writ of habeas corpus ad prosequendum, subsequent
legislation will not be construed to modify, repeal or supplant the legislation, particularly,
where both statues serve distinct purposes." Rosencrans v. United States, 165 U . 297,17
S.Ct. 302, 41 L.Ed. 708 (1897). Moreover, because the legislative history of .»e IAD does
not mention the writ of habeas corpus ad prosequendum, in the Magistrate's view, it would
be error to conclude that the writ process was incorporated into the IAD or that the use of
such writs were modified by the IAD. United States v. Ridgeway, 558 F.2d 357 (6th Cir.
1977); United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977).
Accordingly, the Magistrate finds that the issuance of a state court writ of
habeas corpus ad prosequendum, as employed by the State to obtain custody of Metheny
from federal custody, was merely one method of effecting Metheny's transfer. Based upon
comity considerations, this state court writ is recognized by federal officials, as it were in
this case. Thus, no IAD violation is presented.
2. The Tennessee state court writ is not a "detainer” under the IAD.
While the IAD does not define "detainer,” the legislative history of the IAD
reveals that [a] detainer is a notification filed with the institution in which a person is
serving a sentence, advising that he is wanted to face pending crimina] charges in another
jurisdiction. H.R. Rep. 91-1018, S. Rep. No. 911357, 91 St. Cong. 2d 800, 3 reprinted in
4Prior to United States v. Mauro, 436 U.S. 340, 56 L.Ed.2¢ 329, 98 S.Ct. 1834
(1978), the Court of Appeals for the Sixth Circuit stated that the IAD was the exclusive
means of transferring prisoners between sovereigns. See Trigg v. State of Tennessee, 507
F.2d 949, 952, n.4 (6th Cir. 1974).
xyes
1970 U.S. Code & Cong. News 4864, 4865. The IAD contemplates that in addition to
notification that the Court with jurisdiction over the prisoner must enter an approval of
the request to protect him. Article IV (a).
In United States v. Mauro, 436 U.S. 340, 56 L.Ed.2d 229, 98 S.Ct. 1834 (1978),
the Supreme Court held that a federal court's writ of habeas corpus ad prosequendum was
not a detainer within the meaning of the IAD because none of the abuses or concerns that
prompted the passage of the IAD were present with a federal court's writ of habeas corpus
ad prosequendum.
Because writs of habeas corpus ad prosequendum issued by a
federal court pursuant to the express authority of a federal
statute are immediately executed, enactment of the Agreement
was not necessary to achieve their expeditious disposition.
Furthermore, as noted above, the issuance of ad prosequendum
writs by federal courts hes a long history, dating back to the first
Judiciary Act. We can therefore assume that Congress was well
aware of the use of such writs by the Federal Government to
obtain state prisoners and that when it used the word "detainer,”
it meant something quite different from a writ of habeas corpus
ad ndum. Contrary to the contention of the Court of
pr Ta No. 76-1596, it is not necessary to construe "detainer"
as including these writs in order to keep the United States from
evading its duties under the Agreement. When the United States
obtains state prisoners by means of a writ of habeas corpus ad
r uendum, the problems that the agreement seeks to
oe do not arise; [footnote omitted), accordingly, the
Government is in no sense circumventing the Agreement by means
of the writ. We therefore conclude tnat a writ of habeas corpus
ad prosequendum is not a detainer for purposes of the Agreement.
United States v. Mauro, 436 U.S. at 360-61, 56 L.Ed.2d 329, 98 S.Ct. 1834. As noted, the
Supreme Court earlier held a federal writ of habeas corpus ad prosequendum has no
territorial limitations as to its enforcement. United States v. Carbo, 364 U.S. 611, 5
L.Ed.2d 329, 81 L.Ed.2d 338 (1961).
However, the mere fact that a writ of habeas corpus ad prosequendum is issued
for a prisoner does not foreclose the applicability of the IAD. As the Court of Appeals for
-16-
this Circuit explained, such a writ issued by a federal court can fall under the IAD under
certain circumstances.
However, where the United States lodged a detainer against a
State prisoner, triggering application of the Agreement's
provisions, a writ of habeas corpus ad prosequendum will be
considered a "written request for temporary custody within the
meaning of Article IV and the United States will be Dound by the
terms of the Agreement.
United States v. Dixon, 592 F.2d 329, 334 (6th Cir. 1979), citing United States v. Mauro,
436 U.S. at 361-62, 98 S.Ct. at 1848, 56 L.Ed.2d 329. The Court of Appeals further held
that in such instances where a detainer precedes the federal court's writ of habeas corpus
ad prosequendum:
We agree with appellant that when a4 state prisoner, subject to a
detainer, is taken into federal custody by a writ of habeas corpus
ac prosequendum, "for the purpose of permitting prosecution” or
pending federal charges, disposition of these changes must
precede the prisoner's return to state custody. Failure to do so
will result in dismissal of charges against the prisoner, with
prejudice.
United States v. Dixon, 592 F.2d at 335. The Court of Appeals noted that a prisoner may
waive his rights under Article IV of the IAD. United States v. Dixon, 592 F.2d at 336, n.9.
In contrast to the federal court's writ, a state court writ of habeas corpus has
no such unlimited legal effect to produce prisoners beyond the State's territorial limits. As
the Court of Appeals explained by citation to Judge Mansfield's dissenting opinion in United
States v. Mauro, 544 F.2d 588, 597 (2d Cir. 1976), noting that "[t] he Supreme Court in
Mauro, adopted the meaning of Judge Mansfield with respect to the purpose of Article IV(e)
of the IAD.
The purpose of Art. IV is to assure that states which former|
werless to obtain production of prisoners held by other
be able to secure their
were po pr
states or the vernment w
presence, subject to certain conditions. One of these
C-17
Conditions is that the receiving state, after obtaining the prisoner
merely upon request, will not abuse the privilege Dy returning him
untried since this would have the effect of reinstating and
indefinitely prolonging the detainer lodged against him by the
receiving state, with its prejudicial effects. (emphasis added).
United States v. Dixon, 592 F.2¢ at 336.
Although the state's writs of habeas corpus ad prosequendum lack the
extraterritorial legal euthority of a federal writ, as noted, due to the consistent show of
comity by federal officials to such state writs, as @ policy matter, such state writs can
produce the same effect as a federal writ of habeas corpus ad prosequendum.5 Moreover,
as United States v. Meuro, Supra, establishes, the IAD is not the exclusive method to
trensfer @ prisoner between sovereigns for the purpose of criminal prosecution. Thus, if a
State wi.t were issued under a permissible alternative legal process, then no IAD analysis
of Metheny’s claim is necessary.
Tne Magistrate's view of United States v. Mauro, Supra, is that (ne appropriate
analysis on this IAD claim is not upon the mere labelling of the state process, Dut rather
upon (1) the factual circumstances in which the state writ was issued and (2) whether the
abuses sought to be cured by the IAD, were present in the issuance of state writs of habeas
corpus acd prosequendum. The critical factual issue on this IAD is whether a Tennessee
Getainer preceded the state court's writ of habeas corpus ad proseguendum for Metheny’s
transfer to state authorities. The abuses that were affiliated with the passage of the IAD
are: deprivation of the prisoner's ability to take adventage of many of the prisoner's
programs aimed at rehabilitation” and "problems in sentencing ..." posed by unresolved
indictments; United States v. Meuro, 436 U.S. at 359, 360, 56 L.Ed.2¢ 329, 98 S.Ct. 1834.
Salthough decided unde: the federal All Writs Act, 28 U.S.C. § 1651, one Court
of Appeals, in dictum, observed that because writs do not pose the problems sought to be
cured by IAD, United States v. Maw See "applies with equal force regardless of tne
authority under which the writ was
hich the iss nited States v. 1, $85 F.2¢ 1130, 1136
(D.C. Cir. 1978) (writ issued by the District of Columbia sence Court to a@ Virginia
County Jailor).
-18-
In @Gcition, there was @ perceived need "to encourage the expeditious and orderly
Gisposition of | outstanding) charges and determination of the proper status of any and all
Getainers Desed on untried indictments, information or complaints.” Id. A further concern
was “thet prisoners not De shuttled Deck and forth between penal institutions.” 436 U.S. at
361, n.26, 56 L.Ed.2¢ 32%, 98 S.Ct. 1834. See also, Carchman v. Nash, supra, Slip Opinion
at p. 13, n.8.
In this case, tnere was no Tennessee detainer on Metheny prior to the issuance
of the first Tennessee court's writ of habeas corpus ad prosequendum. Second, there is no
evidence of contention by Metheny of any deprivation of his ability to participate in prison
renad. Ltation programs Dy reason of the usage of Tennessee state courts writs. When the
State court's writs were issued, the writ was honored promptly by federal officials for
purpose of resolving the outstanding Tennessee state charges. Thus, there was no delays in
Metneny's state prosecution because of any state official's misconduct. As will be
Giseussec, the only delay in the state's prosecution was at Metheny's request. Although
thee state court's writs were issued, two of the three that were issued on June 30, 1977
anc Apri 28, 1978, were caused by Metheny's request for his return to federal custody for
medical treatment at @ federal facility. Significantly, the third writ that was issued on
May 11, 1977, was six (6) days prior to when Met»eny was convicted on federal charges.
Furtner, none of these transfers caused any loss of enjoyment of federal prison
programs and, in fact, the additional writs were issued to allow Metheny to receive the
federal medical care that Metheny requested. There were no sentencing problems caused
by these writs. Any attendant shuttling of Metheny between prisons or delay in the
Gisposition of Metheny's state charges were caused by Metheny's decision. In this case,
none of the abuses or concerns of the IAD were present in the use of the Tennessee state
court writs of habeas corpus ad prosequendum. Thus, the Magistrate finds that under the
rationale of United States v. Mauro, the Tennessee state court's use of such writs is not a
detainer within the meaning of the IAD.
Moreover, state court writs of habeas corpus ad prosequendum have been held
not to be detainers under the IAD. Commonwealth v. Fusano, 375 N.Ed.2¢ 361, 364 (Mass.
App. 1978) and authorities cited therein.
3. Metheny's pre-trial detainee status bars the applicatious LAD.
Assuming that the writ of habeas corpus ad prosequendum is a detainer, (which
the Magistrate does not find), Article Ill of 18 U.S.C. § 1, App. provides:
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 a prisoner, he shall be brought to trial within
one hundred and eighty days. . . .
The language in Article III "term of imprisonment” suggests that the IAD is not implicated
for pretrial detainees. "Term of imprisonment” has been construed inapplicable to persons
being detained for trial who are not serving prison sentences. Roberts v. United States,
548 F.2d at 665 (6th Cir. 1977) cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2¢ 232.
See also, United States v. Dobson, 585 F.2d 55 ( 1978), cert. denied, 439 U.S. 899, 99 S.ct.
264, 58 L.Ed.2d 247 ( 1978); United States v. Evans, 423 F.Supp. 528 (S.D. N.Y. 1976) aff'd
without op., 557 F.2d 56 (2nd Cir. 1977); Ridgeway v. United States, 558 F.2d 357 (6th Cir.
1977), cert. denied, 436 U.S. 946, 98 S.ct. 2858, 56 L.Ed.2d 788 (1977); United States v.
Harris, 566 F.2d 610, 612-13 (8th Cir. 1977).
The Court of Appeals for the Sixth Circuit has analyzed the IAD and concluded
that the IAD has two purposes: (1) to minimize interference with -articipation in
programs of prisoner treatment and rehabilitation of persons serving sentences in one
jurisdiction who have charges pending against them in another jurisdiction and (2) to
expedite trial of such pending charges. United States v. Roberts, 548 F.2d 665 (6th Cir.
1977). Thus, the IAD is applicable only to « prisoner who has been sentenced for a term of
imprisonment and who participates or is eligible to participate ‘n programs of treatment
-20-
and rehabilitation that would be obstructed by numerous absences in connection with
successive proceedings related to pending charges in other jurisdiction(s). United States v.
Roberts, 548 F.2d at 671.
Metheny was not sentenced on federal charges as of May 11th. Thus, the IAD
was not triggered by the issuance of the first state court writ even if the Magistrate
assumes that the writ issued on May 11, 1977, Was a detainer.
4. Metheny's Waiver of the LAD protections
Assuming the IAD is applicable, the Magistrate finds that the second state
court writ of habeas corpus ad prosequendum issued on June 30, 1977, was the first writ
that possibiy could have triggered the IAD. The purpose of the writ was to obtain
temporary custody of Metheny for a grand jury appearance. The Magistrate finds that on
July 29, 1977, when Metheny and his counsel appeared in open court on the writ of habeas
corpus ad prosequendum for arraignment, the setting of bond and also for the setting of the
eases for trial and Metheny requested that his trial be continued so that he would be able
to undergo surgery. The state trial court granted Metheny's request. Thus, Metheny's
request caused the issuance of the third state court writ on April 30, 1978.
The Magistrate finds that if the second writ were deemed a detainer, Article Ill
of the IAD requires that: (1) trial shall be commenced within one hundred and 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; and (2) the receiving State is required to
bring the prisoner to trial on the outstanding charge before returning him to the State in
which he was previously sentenced. If trial is not had prior to the prisoner's being returned
to the original place of imprisonment, the court shall enter an order dismissing the same
with prejudice. 18 U.S.C. App. § 2, Article IVie).
The Court of Appeals for the Sixth Circuit has ruled that a prisoner may waive
his rights under the 1AD. In United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979), the
Court of Appeals stated that despite the mandatory language of Article IV, the rights
created by the Agreement are for the benefit of the prisoner and exist for his protection
and are personal to him. Eaddy, 595 F.2d at 344 citing United States v. Ford, 550 F.2d 732
(2nd Cir. 1977). Furthermore, the Court opined:
{1) nm all cases where a prisoner is aware of and understands the
provisions of Article IV, as well as Mis right thereunder, a prisoner
can waive those rights, so long as the waiver is voluntary.
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461
(i938). We also hold that substantive rights accorded to a
prisoner under Article IV may be waived even though the prisoner
is not aware of those rights, where there is an affirmative request
to be treated in a manner contrary to the procedures prescribed
by Article IV(c) or (e) (emphasis).
United States v. Eaddy, 595 F.2d at 344.
The Magistrate finds that on June 28, 1977, Metheny made an affirmative and
knowledgeable request not to have his cases set for trial until after he had undergone
surgery. For this reason, the Magistrate finds that Metheny waived his rights under the
IAD. Therefore, there was no violation of IAD in this case even if the state court writ is
deemed a "detainer” under the IAD.
Vv. RECOMMENDATIONS
For all of the above mentioned reasons, the Magistrate recommends that
Metheny’'s application for writ of habeas corpus be denied. Pursuant to Rule 8(DX3) of the
Federal Rules Governing Section 2254 cases in the United States District Court, Metheny
hes ten (10) days from the date of receipt of this Report in which to file any objections he
mey have to the Magistrate's R and Recommendation, with the District Court.
Entered this the A/ day of March, 1986.
United States
-22-
METHENY v. STATI
he es. | ome Ape.. 668 5. W 26 045
a rite ’ arne Douglas Vincent ME THENY. Appellant
> 34 How e legisia
.
as xpressed «a : r ha
s of
sks be balanced against a concer TATE of Tennessee, Appelice
» : ©. a has therefore
our mmina! Appeals ease
| re ra T ~ wv ’
* i. : .
y. 79
evertheiless ha 4 gine
2 ne + . cam “ he nex ~ 2 ;
The W he fr “~ ao & 4
ques ne ria ige nus nake
w g ; dings we fendar was cle
’ - rt. Anderson \s ho a ‘
ethe ere w exists 5
{ armed robbery irgiar he .
~ : 4 ad ~~ ere ‘
legree no being nt ia rT A
‘ e gh rela’ atters 4 . “us a
he appealed ourt f r ‘
‘ « gate
peais orneiius, < heid nha “ f
F my ee + tte
habeas corpus ac prosequencum was
grre a = res “ P P
encompassed in the defir ’ jetainer
- 7
for purposes nvoking provisions “
ar \ was res ot | na ‘ " ;
state Agreemer n Detainers 2) evide ¢
- ; . . he dete
is lid not support an instruc , : roy "
respass as a lesser included offense of firs
real natler Ne as ral state legree burglary and 2 a a — ‘
signex “A angmire does sta 2 weer ynecons 4 s face
as “subeeque r new aco ve r as appix lefenda
‘ ‘ ca Us he substance Ne 06
Affirme
‘ wes * wr he defendar a
xplored a ria Ci os
” sa i ~ new liaco verex " ™
|. Extradition and Detainers © 52
. masis exists for a heanr
& Wr f habeas corpus « roseq ut =
” "he rema ng ,e8 ' ns rerex P aa
lum was not encom passe r ne <
he \asUance favwr é whet? , P ,
JelLainer ©” purposes king
‘ ‘ ‘ rese lm Lex would have s
visions nterstate Agreeme n Veta
~ s iffere ws — whether .
ers A 64 ~ et seq
via st w charged wit! :
¥ See publication Words and Phrases
evidence rhe ” nor _ “her udcia netru ns «
wen dismissed his basis gefinitions
,Gg me + to he Tra 2 '
« 2 Criminal Law @ 2773.1(2
are here af furrm
W here & prea agreene & accepu
a reac he ne f two res s ordinar
. . ws, depending or rcumstances r
anerif wrformance ‘ he agreeme “
re o " ne artes are res ren Ne
sta sexu » nmedciale “ re ea We
.- . 2rex
rimina! Law @ 1031/4
A gr re : r 1 :
944 Tenn
ord with regard to enforceability of a plea
agreement, defendant's failure to except to
judge's ruling precluded matter from being
raised on appeal, particularly where defend-
ant failed to make an affirmative showing
of irremediable prejudice
4. Criminal Law @ 795(1)
Evidence did not support an instruction
on criminal trespass as a lesser included
offense of first-degree burglary
5. Criminal Law @ 1210
Where indictment under which defend-
ant was convicted chareud defendant with
armed robbery, bursiary and with being an
habitual crimixai, trial court's order, which
required tefendant's sentences for first-de-
gree burglary and for armed robbery to run
consecutively to a federal sentence which
defendant was serving and to run consecu-
tively as to each other, was not improper
6. Criminal Law @ 1202(1)
Adjudication of defendant as an habit-
ual criminal could be based upon defend-
ant's Georgia conviction for taking goods of
& value in excess of $100, an lowa convic-
tion for assault with intent to rape and an
lowa conviction for receiving stolen proper-
ty. TCA. §§ 39-4208, 40-2712, 40-2201
7. Criminal Law @= 1202(7)
Defendant, who was charged with be-
ing an habitual criminal, could not claim
error as result of State's failure to disclose
certified copies of defendant's convictions
and certified statutes from out of state
upon which prosecution intended to rely
where record did not reveal a motion or an
order for disclosure of the evidence of the
convictions alleged in the indictment and
where defendant failed to establish that he
was prejudiced by not seeing the certified
documents
8. Criminal Law = 1202(3)
In defendant's habitual criminal trial
trial court did not abuse its discretion in
prohibiting defendant from testifying on
irrelevant matters
589 SOUTH WESTERN REPORTER, 24 SERIES
9. Criminal Law @ 1213
Habitual criminal! statute does not im
pose cruel and unusual punishment. T.C.A
§ 40-2801; U.S.C_A.Const. Amend. 8
10. Criminal Law @ 1202(4)
It was not error for jury that convicted
defendant of the triggering offense to de
termine defendant's status as an habitua
criminal. T.C.A. § 40-2801
11. Criminal Law @ 1206(2), 1211
Life sentence imposed pursuant to ha
bitual criminal statute upon conviction of
triggering offense of armed robbery was
not excessive and disproportionate to un
derlying offenses, which also included con
vietions for assault with intent to rape and
taking goods of a value in excess of $100
T.C.A. § 40-2801; US.C_AConst. Amend 8
Ann Mostoller, Oak Ridge, for appellant
William M. Leech, Jr., Atty. Gen., Robert
A. Grunow, Asst. Atty Nashville
Mike Lawson, Asst. Dist
ton, for appellee
Gen
Atty
Gen, Clin
OPINION
CORNELIUS, Judge
Appellant, Douglas Vincent Metheny. is
before this court on three cases appealed
from the Criminal! Court of Anderson Coun
ty. The cases are consolidated in this opin
ion, as they obviously should be
Appellant wis indicted as follows
1. Armed Robbery, January 8, 1977. of
Clyde and Myrtle Weich,
2 Burglary in the first degree, Januar)
8, 1977, by breaking and entering res
dence of Clyde and Myrtle Welch
3. Being an Habitua! Criminal, haviné
on January 8, 1977 committed the offense
of armed robbery on the persons of (ly
and Myrtle Weich when he was ther *
person who had been sever. times conv'«'
ed within the purview of Tennessee Co
Annotated § 40- 2801
METHENY v. STATE
Tenn
945
Cite as, Tena. Cr.App. 868 5. W 20 843
On July 26, 1978, a jury found appellant
guilty of burglary in the first degree and
fixed his punishment at not less than five
nor more than fifteen years in the state
penitentiary and guilty of armed robbery
with his punishment fixed at fifteen years
in the state penitentiary On the same
date, at a bifurcated hearing, the same jury
found appellant to be an habitual! criminal
as charged in the third indictment. It is
from these three convictions the appellant
is now before us assigning a total of six
errors on the part of the trial court.
{1} Appellant's first assignment of error
is that the State violated the Interstate
Agreement on Detainers, Section 40-3901,
et seq. An examination of this record does
not demonstrate that the State of Tennes-
see caused a detainer to be lodged with the
federal authorities for the appellant.'' The
appellant's counsel filed and argued a mo-
tion to dismiss the indictments because ap-
pellant had been brought before the court
three separate times through a writ of ha-
beas corpus ad prosequendum and returned
to federal custody without a trial or final
determination of his cases. The trial judge
heard the motion, took the matter under
advisement and later entered an order de-
nying the motion which included a thorough
opinion
The trial judge held that the compact
agreement is not the exclusive means of
transfer of prisoners between jurisdictions,
and a writ of habeas corpus ad prosequen-
dum does not come under the definition of
“detainer” for the purposes of invoking the
)Tovisions of the agreement. United States
v. Seallion, 548 F.2d 1178 (Sth Cir). The
United States Supreme Court reversed an
opinion of the Court of Appeals for the
Second Cireuit which held that a writ of
habeas corpus ad prosequendum was a de
‘ainer entitling the State inmate to the
protection provided in Article IV and spe-
cifically to @ trial before his return to the
State institution. United States v. Mauro,
i
Upon hearing appellant's motion, the trial
judge found the District Attorney had not filed
436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed2d 329
(1978). The Supreme Court clearly held the
writ of habeas corpus ad prosequendum not
to be a detainer within the meaning of the
agreement and thus does not trigger the
application of the agreement. Mauro, su-
pra. This assignment of error is overruled
{2} Appellant's second assignment of er-
ror is that the District Attorney failed to
honor a plea agreement entered into by the
parties, which plea agreement the court
must honor. In the case of James Douglas
Orange v. State, 1976, O'Brien, J., James
Douglas Orange relied upon Santobello v
United States, 494 U.S. 257, 92 S.Ct. 495, 30
L.Ed.2d 427 to ei.force a plea agreement, as
does this appellant. In Santobello, the
statement was made that the courts wil!
specifically enforce agreements made by
the government in the process of plea bar-
gaining after the guilty plea is accepted by
the court. No authority was offered in
Orange, supra, nor has any been offered
herein, to support the appellant's position
that a plea bargaining agreement wil! be
enforced prior to its acceptance by the
court. Where an agreement is accepted
and breached, one of two results ordinarily
follows, depending on the circumstances
(1) either specific performance of the agree-
ment is directed, or, (2) the parties are
restored to the status existing immediately
before the plea was entered
[3] The bill of eXteptions (line 24, page
28 through line 5, page 29) reflects that
appellant's counsel attempted to take up
with the trial judge the question of the plea
bargain agreement but she did not succeed
We think the trial judge was in error not to
allow appellant's counsel to complete the
record on this point. However, appellant's
counsel did not except to the trial judge's
ruling. It has long been the rule of this
court that errors to which no objections are
made and exception taken in the court be-
low cannot be raised on appeal. Exel! »
a detainer within the meaning of Articie [Vie
of the agreement
946 Tenr
State, 413 S.W.2d 678, 681 (Tenn.) Fur
thermore, appellant has not demonstrated
the loss of any trial tactic or fundamental
right as a result of this miscarriage of nego-
this
adopted the comment of a Maryland court
State, 22 Md.App. 165, 322 A.2d
ys. in Orange, supra court
in Wynn v
564
“We cannot overlook the fact that a pros-
ecutor has a profound obligation to socie-
ty. If prior to the consummation of a
plea bargain he foresees that it might
endanger society, he has not merely the
right, but the responsibility, to withdraw
the agreement Plea bargains
should not be specifically enforced in the
from
absence of affirmative evidence of pre)ju-
dice arising from the bargain, which pre)-
udice cannot be remedied by permitting
the defendant to withdraw his plea and
commence anew. Only upon a finding of
such inexpiable prejudice should « de-
fendant be permitted the option of specif
¢ performance by the trial court.’
There being no affirmative showing of ir
remediable prejudice to appellant, we over
rule this assignment of error
{4} Appellant's third assignment of er
ror addresses the denial of a request for an
instruction on criminal trespass as a lesser
included offense of first degree burglary
and the ordering of the sentences to run
consecutively. This record does not support
the need for an instruction upon the law of
criminal trespass. Howard v. State, 578
S.W.2d 8 (Tenn.1979; recommended for
publication)
[5] The trial court ordered the sentences
for first degree burglary and for armed
robbery to run consecutively to the federal
sentence appellant is serving and to run
The
‘in order to
from further criminal
the
finds to be both a persistent offender and a
consecutively as to each other tna!
judge ruled this was necessary
protect the public
conduct by the defendant, whom court
multiple offender as judicially Gefined
589 SOUTH WESTERN REPORTER, 2d SERIES
We do not find this ruling of the tra! judge
to conflict with the holdings in
State, 539 S.W.2d 855, 860 (Tenn.Cr Ap;
This ruling also is supported by
State, 538 S.W.2d 391, 393
indictment under which appellant was cor
victed charged appellant with being an ha
which
not charge an independent crime to the
armed robbery offense
guilty under the armed robbery indictment
the “trigger was pulled” for the habitua
criminal indictment, the conviction thereun
reer
Gra)
(Tenn.). The
bitual cmminal! is a status, and did
Upon being found
der enhancing the armed robbery sentence
Harrison v. State, 394 S.W.2d 713 (Tenr
State, 571 S.W2d 233
The charging procedure followed in this
Evans ¥ (Tenr
case is the same as in State v. Hudson, 562
S.W.2d 416 (Tenn)
“The defendant
and convicted in one tna
was separately
of the following
offenses and received the punishment ir
dicated '
Our Supreme Court approved the procedure
of revising the judgments to compy with
the law. The trial judge did this in his
order entitled “Verdict of the Jury and
Order of the Court.”?
error is overrulec
This assignment
(6) Appellant's fourth assignment of «
ror attacks the
certain
which would have been misdemeanors
introduction of proof
crimes which were felonies ¢
Tennessee. Appellant says it was further
error to instruct the jury that any cmme
which is a felony in another state must De
considered as a felony for the purposes
conviction under the habitual criminal stat
ute in Tennessee. The State's basis for
proof of appellant's status as a habitus
emmina! is found upon the following cor
tions
1. Taking goods of a value in exces®
$100.00, Peach County, Ga
T.C.A. § 40-2712 and TCA. §
2 Assault with intent &
A.§
(Compare
39 42
‘ ui
rape, 5a
lowa (Compare T. 39-605
page 4
METHENY v. STATE Tenn. 947
Cite as, Tena.Cr.Agp.. 588 SW 24 843
Receiving stolen property, State of
lowa (Compare T.C.A. § 40-2712 and
Odell Smith v. State, C.C.A. at Jackson,
February 1, 1979, Tatum, Judge)
We :hink the requisite criteria to support
the status of having three prior convictions
against him, as required under Section 40
2301 T.C.A., has been properly met. Craf-
ton v. State, 545 S.W.2d 437, 439 (Tenn.)
Appellant's counsel in the caption to this
assignment of error complained conjunc-
tively as to the trial judge's instructions to
the jury. We are cited no authority to
support this part of the assignment and it is
without merit Rockett v. State, 475
S.W.2d 561 (Tenn.Cr.App.). This assign-
ment of error is overruied
[7] Appellant's fifth assignment of error
relates to the trial judges allowing the
introduction of certified copies of appel-
lant's conviction and the certified statutes
from out of state. It is alleged that the
District Attorney failed to comply with de-
fendant’s motion for copies of such docu-
ments before trial
The habitual! criminal indictment in this
case contains al] the information required
under Section 40-2808 T.C.A. The thrust
of appellant's assignment centers upon the
difference between having the information
n fact and having certified information
Appellant states the complaint as follows
“There was no reason for the State to fai!
to show defense counsel the documents
they intended to rely upon, particularly
when they had willingly produced similar
documents earlier; in fact, failure to pro-
vide defense counsel with proper docu-
ments compounded the error in that it led
defense counsel! to believe that they knew
what documents would be introduced at
trial
The bill of exceptions shows that the Dis-
trict Attorney answered the question by
Stating he had only shortly before trial re-
ceived the certified copies. The trial judge
3 Motion for discovery, filed August 5, 1977
‘early did not cover such a request. We are
overruled appellant's objection and allowed
this evidence. The record does not reveal a
motion or an order for disclosure of evi-
dence of the convictions alleged in the in-
dictment* No effort was made in the ap-
pellant’s brief to explain how he was preju-
diced by not seeing the certified documents
Anglin v. State, 553 S.W.2d 616, 622 (Tenn
Cr.App.). This assignment of error is over-
ruled
(8) Appellant's sixth assignment of er-
ror is that the habitual criminal statute is
unconstitutional on its face and as applied
in this case. He raises three points. The
first point is that no evidence may be
presented to the jury concerning the nature
of the crime committed by the defendant or
of his character reputation, social-economic
standing. This court held in Delay v. State,
563 S.W.2d 905, 907 (1977) (Cert. denied
Feb. 20, 1978, pet. rehear. denied. April 3
1978)
“(7] Johnson (a co-defendant) complains
that the court refused his offer of proof
During the habitual criminal tral, he
sought to show by his wife his present
good behavior. This was not error. The
only issue at this trial was the validity of
Johnson's prior convictions.”
In the instant case the trial judge allowed
the anpellent to take the stand over the
State's objection. During his testimony the
State raised several specific objections
which were sustained. However, the tral
judge clearly advised appellant's counse!
that he was not cutting off appellant's mght
to testify [on relevant matters). We find
no abuse of discretion on the part of the
tna! judge
(9] The next issue is that the jury had
no leeway to enhance the sentence without
automatically granting a life sentence with-
out parole, and that this amounts to a form
of cruel and unusual punishment. Our Su-
preme Court, in 1975, in an unanimous opin-
ion, authored by (then) Justice Henry, clear-
ly answered this issve against appellant
unabie to find an order covering the three items
covered in this motion (TR. # 61, page 13)
948 Tenn
State, 521 S.W.2d 225 (Tenn.)
(citing with approval this court's opinion of
Hobby v. State, 499 §.W.2d 956 (Tenn.Cr
App.). Appellant says in effect that the
above cases have been compromised by
Woodson v. North Carolina, 428 U S. 280, 96
S.Ct. 2978, 49 L.Ed.2d 944 (1976) The lead
opinion of Woodson, supra, covers six points
all inter-locked to capital punishment, the
death penalty, and who would live and who
would die. It does not treat the subject of
automatic sentences, but rather the subject
of automatic death penalties
“This whole country has traveled far
from the period in which the death sen-
tence was an automatic and commonplace
result of conviction Williams
v. New York, 387 U.S. 241, 247, 93 L.Ed.
1337, 69 S.Ct. 1079, 1083 (1949) Woodson
v. North Carolina, supra
This court has traversed this issue since
Woodson v. North Carolina, supra, and
again found the habitual criminal statute
does not impose crue! and unusual punish-
ment. Glasscock v. State, 570 S.W.2d 354,
955 (Tenn.Cr.App.), cert. denied Aug 2B.
1978
Pearson ¥
[10] Appellant next says it is error to
require the jury that convicts of the tng-
gering offense to determine the defendant's
status of being an habitual criminal. We
think appellant has misconstrued Bishop v
State, 563 S.W 2d 913 (Tenn.Cr.App.)
find no merit to the appellant's conten-
tion that they should be qualified again
before hearing the habitual! criminal! evi-
dence The same jury is required to hear
both facets of the bifurcated proceedings,
and was found initially to be qualified
This assignment is overruled.”
[11] Appellant contends that the habitu-
al criminal statute is unconstitutional, be-
couse as applied in the instant case the life
sentence was so excessive and dispropor-
tionate to the underlying offenses that it
589 SOUTH WESTERN REPORTER, 2d SERIES
constituted a violation of the Eighth
Amendment protection against cruel and
unusua! punishment Appellant relies upon
the rationale of Hart v. Coiner, 483 F.2d 136
(4th Cir. 1973) and Rummel v Estelle, 568
F.2d 1193 (Sth Cir. 1978)
In Elnorris Smith v. State of Tennessee,
at Jackson, opinion filed Oct 18, 1978, Dun-
can, J., another panel of this court found
“The underlying offenses of Hart and
Rummel can hardly be equated with the
defendant's underlying offenses in the
present case. The same thing must be
said in comparing the Hart and Rumme!
tnggenng offenses with the defendant's
unggering offense”
We adopt the comparison test cf Smith,
supra. The present case has underlying
offenses of assault with intent to rape and
taking goods of a value in excess of $100.00
as well as a triggemng offense of armed
robbery and the life sentence given was not
exceasive and disproportionate to the under-
lying offenses This assignment of error 1s
overruled
We affirm the judgments below
DWYER and BYERS, JJ., concur
Billy HULL, Appellant.
v.
STATE of Tennessee, Appellee.
Court of Criminal Appeals of Tennessee
at Knoxville
June 28, 1979
Permission to Appea! Denied by Suprem*
Court Sept. 4, 1979
Petitioner appealed from ® judgmen'
of the Criminal Court, Hamilton Court)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.