Petition for Writ of Certiorari — Mann v. Warden

SUN WG Le LS A aM ae a ae ve Ld

a

Supreme Court, U.S.

“a FILE)

DEC 24 995

- JOS oes

in the OSEPH — OL, UR.

Supreme Court

of the

United States

FRANK MANN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOHN H. LIPINSKI, ESQ.

Counsel for Petitioner

1441 N.W. North River Drive

Miami, Florida 33125

(305) 326-7143

QUESTION PRESENTED FOR REVIEW

WHETHER THE DISTRICT COURT ERRED

IN NOT AFFORDiNG THE PETITIONER, A

PRISONER PRESENTLY IN FEDERAL

CUSTODY, A PRE-TRANSFER HEARING

PRIOR TO HIS RETURN TO THE STATE

OF VIRGINIA PURSUANT TO A DETAINER

FILED UNDER THE INTERSTATE

AGREEMENT ON DETAINERS AND IN

SUMMARILY DENYING HIS PETITION

WITHOUT SUCH HEARING?

LIST OF PARTIES

The caption of this cause lists all parties to this

cause who are »efore this Court.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......

See GOR PURER os swe a Cae eh ie Veen Se

SEARS GE GER ET 0 och de eee rea ees

GP Rey REINO es Gini eS Wan ee

Pia, ty | i Saree mm ares a rary

PROVISIONS INVOLVED ....................

STATEMENT OF THE CASE ..... ...........

REASONS FOR GRANTING THE WRIT

THE DISTRICT COURT ERRED IN NOT

AFFORDING THE PETITIONER, A

PRISONER PRESENTLY IN FEDERAL

CUSTODY, A PRE-TRANSFER HEARING

PRIOR TO HIS REMOVAL TO THE STATE

OF VIRGINIA, PURSUANT TO A DETAINER

FILED UNDER THE INTERSTATE

AGREEMENT ON DETAINERS AND IN

SUMMARILY DENYING HIS PETITION

WITHOUT SUCH HEARING ..............

CONCLUGION 5. csck tie ees

CERTIFICATE OF SERVICE .................

TABLE OF CONTENTS (Continued)

Page

APPENDIX —

A. OPINION OF 11TH CIRCUIT

COURT OF APPEALS ......... App. A-1

B. ORDER DENYING MOTION FOR

REHEARING ................. App. B-1

ill

TABLE OF CITATIONS

Cases

Cuyler v. Adams,

SR BE: Fe eK eek ae eens

OTHER AUTHORITIES

UNITED STATES CONSTITUTION

ith Demme oe. iss v0

OPINION BELOW

The opinion of the United States Court of Appeals,

Eleventh Circuit, was entered on September 24, 1985.

That opinion is set forth in Appendix A to this Petition.

A timely filed motion for rehearing was denied on

October 30, 1985. That opinion is set forth in Appendix

B to this Petition.

JURISDICTION

This Petition for Certiorari was filed less than 60

days from the opinion of the lower court. The jurisdiction

of this Court is invoked under 28 U.S.C., Rules 17 and

20, Supreme Court Rules. The Eleventh Circuit Court

of Appeals, in this case, has rendered an opinion which

is in conflict wich the decision of this Court in Cuyler v.

Adams 101 S.Ct. 703 (1981).

PROVISIONS INVOLVED

The pertinent portion of the Fifth Amendment to

the United States Constitution is:

No person shall . . . be deprived of life, liberty

or property, without due process of law.

The pertinent portion of the Sixth Amendment to

the United States Constitution is:

In all ¢riminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the state and district wherein

the crime shall have been committed, which

district shall have been previously ascertained

by law. . .

STATEMENT OF THE CASE

The petitioner is presently a federal prisoner in

the respondent's custody. The petitioner is serving a

federal prison sentence upon a federal conviction based

upon the same facts as the Virginia indictments which

are the basis for the detainer lodged against the petitioner.

The petitioner protested his transfer on the detainer

to the warden of the prison camp. His request was

denied without a hearing, with the following comment

from the warden:

You have also stated that you felt that there

are legal probiems in relation to this detainer.

I have investigated this matter and have made

the determination that any further challenge

to this detainer is a judicial matter.

The petitioner filed a petition for writ of habeas

corpus requesting a pre-transfer hearing on the validity

of his detainer. A federal magistrate recommended

that the petition be denied, and the district court adopted

_ that recommendation without opinion.

The petitioner's conviction was affirmed on direct

appeal to the Eleventh Circuit Court of Appeals. See,

Appendix A.

The petitioner's timely petition for rehearing was

denied. See, Appendix B.

REASONS FOR GRANTING THE WRIT

THE DISTRICT COURT ERRED IN NOT

AFFORDING THE PETITIONER, A

PRISONER PRESENTLY IN FEDERAL

CUSTODY, A PRE-TRANSFER HEARING

PRIOR TO HIS REMOVAL TO THE STATE

OF VIRGINIA, PURSUANT TO A DETAINER

FILED UNDER THE INTERSTATE

AGREEMENT ON DETAINERS AND IN

SUMMARILY DENYING HIS PETITION

WITHOUT SUCH HEARING.

The Sixth Amendment to the United States

Constitution provides that, in a criminal case, the accused

shall be tried “in the state and district wherein the

crime shall have been committed which district shall

have been previously ascertained by law.”

The petitioner, in the petition filed in district court,

specifically contested the jurisdiction of the Virginia

courts, specifically attacking the validity of the Virginia

indictments upon which the detainer was based. Seeking

administrative review, the warden termed his challenge

to the detainer a “judicial matter.” The petition has

been denied both an administrative hearing and a judicial

hearing. The courts say it is an administrative matter.

The warden (administrator) says it is a judicial matter.

The petitioner, in the middle, gets no hearing whatsoever.

The petitioner submits that it is a judicial matter

and that, pursuant to this Court’s decision in Cuyler v.

Adams, 101 S.Ct. 703 (1981), he is entitled to a pre-

transfer hearing.

In Cuyler, this Court found that the “primary

purpose” of the Detainer Agreement was to protect

prisoners against whom detainers are outstanding, as

it held:

The remedia. purpose of the Agreement

supports an interpretation that gives prisoners

the right to a judicial hearing in which they

can bring a limited challenge to the receiving

state's custody request. In light of the purpose

of the Detainer Agreement, as reflected in the

structure of the Agreement, its language, and

its legislative history, we conclude as a matter

of federal law that prisoners transferred

pursuant to the previsions of the Agreement

are not required to forfeit any pre-existing

rights they may have hee under state or federal

law to challenge their tra isfer to the receiving

state. (P. 712).

Before going into federal custody, the petitioner

had successfully fought his extradition to Virginia in

the Florida state courts (Mann uv Crawford), 11th Judicial

Circuit, State of Florida, Case No. 84-2349). Now, solely

because he is in federal custody, he is being denied the

access to the courts which he had enjoyed before being

taken into federal custody, even though the respondent

has stated that the petitioner's challenge is a “judicial

matter”.

The petitioner does not argue that every federal

inmate with a detainer is entitled to a full-fledged

pre-transfer hearing. Those inmates who can, however,

raise colorable, arguable, supported legal claims for

relief should be afforded a pre-transfer hearing at which

they may argue their position. The petitioner has such

meritorious claims. The respondent has never denied

that the petitioner has raised arguable claims.

The petitioner submits that to deny him a pre-

transfer hearing, the right to which he had and had

successfully exercised before being taken into federal

custody, solely because he is now in federal custody is

contrary to Florida law, contrary to the respondent's

recommendation that the petitioner's challenge was a

“judicial matter”, and contrary to the dictates of Cuyler,

supra, by which, the petitioner submits, this Court has

afforded the right to a pre-transfer hearing to federal

inmates against whom a detainer is lodged and who

can present meritorious defenses to those detainers.

CONCLUSION |

Based upon the above facts, arguments, and

authorities, the petitioner respectfully requests this

honorable Court to issue its most gracious Writ of

Certiorari to review the instant opinion of the United

States Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

JOHN H. LIPINSKI, ESQ.

Counsel for Petitioner

1441 N.W. North River Drive

Miami, Florida 33125

(305) 326-7143

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing was delivered by mail to the Office of

the United States Attorney, SAMUEL A. ALTER,

Assistant, 309 U.S. Courthouse, 100 N. Palafox, Pensacola,

Florida 32501, this day of December, 1985.

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Appendix

=a.

APPENDIX A

Frankie MANN,

Petitioner-A ppelant,

Vv.

WARDEN OF EGLIN AIR FORCE BASE,

Federal Penal Institution,

Respondent-A ppellee.

No. 84-3888.

United States Court of Appeals,

Eleventh Circuit.

(Sept. 24, 1985.]

Federal prisoner sought habeas corpus after federal

prison camp warden denied his challenge to Virginia

detainers without a hearing. The United States District

Court for the Northern District of Florida, Winston ©.

Arnow, J., denied relief and prisoner appealed. The

Court of Appeals held that: (1) prisoner was a federal

prisoner and thus not entitled to any judicial determination

available to Florida inmates under Florida jaw; (2) Sixth

Amendment did not entitle prisoner to a hearing; and

(3) warden’s review was adequate under the Interstate

Agreement on Detainers.

Affirmed.

App. A-l

1. Extradition and Detainers —53

Federal prisoner being held at federal prison camp

in Florida was not entitled to benefit of Florida statutes

providing for judicial determination of propriety of

transfer with respect to detainers filed by the State of

Virginia. West’s F.S.A. §941.10

2. Extradition and Detainers —53

Under the interstate Agreement on Detainers Act,

§2, Art. II(a), 18 U.S.C.A. App., the United States may

be a sending “state” for purposes of determining inmate's

right to challenge transfer to the receiving state.

See publication Words and Phrases for other judicial

constructions and definitions.

3. Extradition and Detainers —56

Federal prisoner had no Sixth Amendment right

to hearing before warden of federal prison camp to

challenge detainers filed by State of Virginia. U.S.C.A.

Const.Amend. 6.

4. Extradition and Detainers —56

Although federal prison camp warden’s written

order informing prisoner that he had investigated alleged

legal problems with detainers filed against prisoner

and had determined that any further challenge would

be a judicial matter was somewhat peremptory, the

Interstate Agreement on Detainers Act, §2, Art. IIa),

18 U.S.C.A. App., did not require more.

App. A-2

Appeal from the United States District Court for

the Northern District of Florida,

Before FAY and JOHNSON, Circuit Judges, and

HOFFMAN’, District Judge.

PER CURIAM:

Appellant Frankie Mann is serving a two year

sentence in a federal prison camp at Florida's Eglin Air

Force Base. In August 1984, the state of Virginia filed a

detainer against Mann for two outstanding indictments.

Mann protested his transfer on that detainer to the

warden of the prison camp. His request was denied

without a hearing, with the following comment from

the warden:

You have also stated that you felt there are

legal problems in reiation to this detainer. I

have investigated this matter and have made

the determination that any further challenge

to this detainer is a judicial matter.

Appellant filed a habeas petition in the Northern

District of Florida on September 24, 1984, claiming

that he was entitled to a pre-transfer hearing on the

validity of his detainer. A federal magistrate recommended

that the petition be denied, and the district court adopted

that recommendation without opinion. Mann then filed

this appeal.

*Honorable Walter E. Hoffman, U.S. District Judge for the

Eastern District of Virginia, sitting by designation.

App. A-3

{1] Frankie Mann claims that he is entitled to a

pre-transfer hearing under Cuyler vu. Adams, 449 U.S.

433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), and the Sixth

Amendment to the United States Constitution. We

disagree.

In Cuyler, the Supreme Court held “as a matter of

federal law that prisoners transferred pursuant to the

provisions of the [Interstate Agreement on Detainers]

are not required to forfeit any pre-existing rights they

may have under state or federal law to challenge their

transfer to the receiving state.” Jd. at 450, 101 S.Ct. at

712. Those rights “include the procedural protections

of the Extradition Act (in those states that have adopted

it), as well as any other procedural protections that the

sending State guarantees persons being extradited from

within its borders.” Jd. at 448, 101 S.Ct. at 711-712.

[2] Frankie Mann claims that Florida is “the sending

State” in his case since he is actually within its borders,

and thus he argues that under Cuyler he should benefit

from Florida Statute §941.10, which prevides for a

“judicial determination” of the propriety of his transfer.

This Court is not so literal-minded. Mann is, in fact, a

prisoner of the United States—and under the Interstate

Agreement on Detainers, 18 U.S.C.A. App. §2, Article

II(a) (1970), the United States may be a sending “state.”

Thus, Mann receives no procedural protection under

Florida statutes or, indeed, under the Extradition Act

since the United States has not adopted the latter. See

Wilson vu. Fenton, 684 F.2d 249, 252 (8rd Cir.1982); Sorenson

v. United States, 539 F.Supp. 865, 866 (S.D.N.Y. 1982).

[5] Mann’s claim that the Sixth Amendment to

the United States Constitution offers him relief is similarly

App. A-4

unavailing. It stretches that amendment too far to read

its requirement that a defendant be tried in the proper

forum, “which district shall have been previously

ascertained by law,” U.S. Const. amend. VI, to mandate

full-fledged pre-transfer hearings for all inmates with

detainers.

[4] The only procedure by which Mann may

challenge the facial validity of a detainer before his

transfer appears to be by motion for review by the

prison camp warden. The Detainer Agreement provides

that:

there shall be a period of thirty days after

receipt by the appropriate authorities before

the request be honored, within which period

the Governor [by designation, the warden] of

the sending State may disapprove the request

for temporary custody or availability, either

on his own motion or upon motion of the prisoner.

Detainer Agreement, supra at Art. IV(a) jannotation

supplied]. Mann sought such review, and the warden of

his camp would not disapprove the transfer. Although

that official's written order was admittedly somewhat

peremptory and confusing—and we would be more

sanguine about less perfunctory findings on the prisoner's

claims — we do not read the Detainer Act as requiring

more.

Consequently, we AFFIRM the judgment of the

court below.

App. A-5

APPENDIX B

[FILED OCT 30 1985)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH COURT

NO. 84-3888

FRANKIE MANN,

Petitioner-A ppellant,

versus

WARDEN OF EGLIN AIR FORCE BASE,

FEDERAL PENAL INSTITUTION,

Respondent-A ppellee.

Appeal from the United States District Court

for the Northern District of Florida

ON PETITIONS) FOR REHEARING

(OCT 30 1985)

BEFORE: FAY and JOHNSON, Circuit Judges, and

HOFFMANN’, District Judge.

*Honorable Walter E. Hoffman, U.S. District Judge for the

Eastern District of Virginia, sitting by designation.

App. B-1

PER CURIAM:

The petition(s) for rehearing filed by Frankie Mann

is DENIED.

ENTERED FOR THE COURT:

s/ jIllegible]

United States Circuit Judge

App. B-2