Petition for Writ of Certiorari — Dillon v. Beeler

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In The

Supreme Court of the United States

October Term, 1997

$ one

THOMAS J. DILLON,

Petitioner,

Vz.

ARTHUR BEELER, Warden FMC, Lexington,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Douctas A. TRANT

Counsel of Record

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

PPIRA EY Bo

QUESTIONS PRESENTED

I. Whether a District Court in the State of Peti-

tioner’s federal confinement has concurrent jurisdiction

to issue a writ of habeas corpus arising from an interstate

detainer filed by a demanding State outside the territorial

boundaries of the District Court’s State, or should such

habeas petitions be transferred in the interests of justice

and judicial efficiency to a District Court in the demand-

ing State?

II. Whether a petition for a writ of habeas corpus is

moot when a simple change in the status of the Peti-

tioner’s custody does not affect the nature of the habeas

relief sought by the Petitioner, specifically, that a pending

State indictment should be dismissed for violation of the

Interstate Agreement on Detainers and for denial of the

Petitioner’s constitutional speedy trial rights?

LIST OF ALL PARTIES TO THE PROCEEDING

The following is a list of all parties to the proceeding

in the United States Court of Appeals for the Sixth Circuit

whose judgment is sought to be reviewed in this case:

Arthur Beeler

Thomas J. Dillon

ill

TABLE OF CONTENTS

Page

PPE A BUPEE WMOMIC EER? viccc sce sks bacesccscdvccs i

LIST OF ALL PARTIES TO THE PROCEEDING .... | ii

MUR TP ORME yoko vic sk vasienavcssacccusas iii

NOE AN POT OULU ERED 6s oc cs kc cis cGacviceswece \

I. OPINIONS AND ORDERS OF THE LOWER

COURTS ENTERED IN THIS CASE.......... 1

Fie Ne SAMO 6 kas eke wane des hyanewha os 1

RE reo a er 2

I]. JURISDICTION OF SUPREME COURT....... 2

f, - seeeainees Of Petition ................... 2

B. Statutory Jurisdiction of Supreme Court.... 2

Ill. RELEVANT PROVISIONS OF LAW.......... 3

IV. STATEMENT OF THE CASE AND FACTS... 3

A. United States District Court for the East-

ern District of Kentucky................. 3

B. United States Court of Appeals for the

EES SLC SRD ev nea eet ee 5

. tennessee State Courts ................... 6

V. ARGUMENT IN FAVOR OF GRANTING A

WIRE Se WMCP eek k cc cou deceescnser 7

TABLE OF CONTENTS -— Continued

Page

A. A Federal District Court either in the District

of a Petitioner’s confinement or of the custo-

dian’s presence has concurrent jurisdiction to

issue a writ of habeas corpus arising from a

detainer filed by a demanding State outside

the territorial boundaries of the District

Court but, in the appropriate cases, a District

Court should transfer such petitions to a fed-

eral court in the demanding State in the

NOES OE DONE esi oaks Ons censuses ens 9

B. A Petition for a Writ of Habeas Corpus is

not moot when the Petitioner is released

from custody if the nature of the relief

sought is not affected and is appropriate

under the circumstances of the case ..... 23

,j Ma Ot | Et}. re em ee sary Ee yee 30

Fg, 8) mre Sire ye ea eae ye eee 1A

TABLE OF AUTHORITIES

Page

Cases CITED:

Anherns-v. Clark, 338 U.S. 188 (1948) 52.2 coo 14

Anderson v. United States, 898 F.2d 751 (9th Cir.

| EP ey ra mtn graces Gay a eye eI mE as Mak ASAE 22

Baker v. Wade, 743 F.2d 236 (5th Cir. SOOEE kiss ce oes 15

Barker v. Wingo, 407 U.S. 514 RE WOES a ak eee os fi aees 29

Barry v. Bergen County Probation Dept., 128 F.3d

BO. GU: GM GOED Vo banec yes cseces wecea caw 24

Bedwell v. Harris, 451 F.2d 122 (10th Cir. +. ig | Boe 21

Bell v. United States, 48 F.3d 1042 (8th Cir. | ee

Birdsell v. State of Alabama, 834 F.2d 920 (11th Cir.

ki secs Wane cae Re ee 17

Birdwell v. Skeen, 983 F.2d 1332 (5th Cir. 4) Se 17

Blau v. United States, 566 F.2d 526 (5th Cir. 1978) .... 18

Board of Pardons v. Allen, 482 U.S. 369 (1987)...... 23

Braden v. 30th Judicial Circuit Court of Kentucky,

BED SI. OG CABO ink os ah oko ee passim

Braxton v. United States, 500 U.S. 344 (1991)......... 8

Brittingham v. United Staies, 982 F.2d 378 (9th Cir.

ROURGs + U5 ena cee en be MANNS ELEC Ee 16

Brown v. State of Arkansas, 426 F.2d 677 (8th Cir.

SFEUD sci V Wa ere RS RPAC TD SABRC ELON E ELSE TEL CS 20

Browning v. Foltz, 837 F.2d 276 (6th Cir. 1988)...... 11

Burrus v. Turnbo, 743 F.2d 693 (9th Cir. 1984)....... 26

TABLE OF AUTHORITIES —- Continued

Page

Calderon v. Moore, 116 S.Ct. 2066 (1996)......... yA ey 2 f

Campbell v. Commonwealth of Virginia, 453 F.2d

Se CE Ge BORIS ico oes cuba EEN RSE USS 20

Carafas v. Lavallee, 391 U.S. 234 (1968) ............. 24

Carbo v. United States, 364 U.S. 611 (1961).......... 14

Carchman v. Nash, 437 U.S. 716 (1985).............. 10

Casper v. Ryan, 822 F.2d 1283 (3d Cir. 1987) ........ 11

Cavallero v. Wyrick, 701 F.2d 1273 (8th Cir. 1983) .... 25

Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C.

Re SOUR FA cthaeK Vea OR DES Caeees Se eeESIataS 21, 22

Christianson v. Colt Industries Operating Corp.,

PE Res GUD EROES 6 Ov 534 eewaoiae da wedeterainas 8, 22

Church of Scientology of California v. United

Os. TO Ra Oe EEO es Sx 00kS Nae oh des chee ke ved r be

Commonwealth v. Merlo, 364 A.2d 391 (Pa. 1976).... 27

Cross v. Cunningham, 87 F.3d 586 (Ist Cir. 1996) .... 11

Cuyler v. Adams, 449 U.S. 433 (1981) ............... 28

Denjanjuk v. Meese, 784 F.2d 1114 (D.C. Cir. 1986) .... 22

Dillon v. State, 844 S.W.2d 139 (Tenn. 1992)..... i ee

Dillworth v. Barker, 455 F.2d 1338 (5th Cir. 1972) .... 20

Deggett v. United States, 112 S.Ct. 2686 (1992) ...11, 30

Dunne v. Henman, 875 F.2d 244 (9th Cir. 1989)...... 17

Eagles v. United States, 329 U.S. 304 (1946)

Vil

TABLE OF AUTHORITIES - Continued

Page

Echevarria v. Bell, 579 F.2d 1022 (7th Cir. 1978) ..... 25

Escobedo v. Estelle, 655 F.2d 613 (5th Cir. 1981)..24, 26

Ex Parte Endo, 323 U.S. 283 (1944)............... 13, 24

mu rare cases, G16 U.S. Bae) CISTS) ais vied vcs 13

ex Parte Royal, 117 U.S. 261 (i886)... 6. chee aans 27

Ex Parte Royall, 127 US. 254 (1666)...............%- 27

SOY VT, rd Weds OR. CAPOOD Fs a dcs twee ds clesvic 28

Federal Trade Commission v. American Tobacco

Saks ee Ree ee LUNE Doe cs bac ious swe eek ans Venn 8

Fest v. Bartee, 804 F.2d 559 (9th Cir. 1986) .......... 20

Frisbie v. Collins, 342 U.S. 519 (1952) ............... 28

Galaviz-Medina v. Wooten, 27 F.3d 487 (10th Cir.

SRR Bp ohne Up iy cae pay Pl Blane Gh Sage Car SER cep abey Be 19

Gibson v. Klevenhagen, 777 F.2d 1056 (5th Cir.

RE Shean wane Er ah Po pat pee ee ie 17, 18, 26

Gilliam v. Foster, 61 F.3d 1070 (4th Cir. 1995) ....... 27

Gilliam v. Foster, 75 F.3d 881 (4th Cir. 1996) ........ 23

Gilstrap v. Godwin, 517 F.2d 52 (4th Cir. 1975)...... 25

Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962)....... 22

Gosa v. Mayden, 413 U.S. 665 (1973)................ 24

Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1974)........ 19

Guerra v. Meese, 786 F.2d 414 (D.C. Cir. 1986) ...... 24

Hajduk v. United States, 764 F.2d 795 (11th Cir.

NOOR G5 64K 0b ECR E Ree ed OLED R Oh cacao een 17

Vill

TABLE OF AUTHORITIES - Continued

ie)

Harrison v. State of Indiana, 597 F.2d 115 (7th Cir.

i ff BRED ORO Ee EM, ae Biaeatiy eee Meet <p gy Is oy GOD one tilt cy aaa 27

Hassain v. Johnson, 790 F.2d 1420 (9th Cir. 1986) .... 18

Hensley v. Municipal Court, San Jose Milpitas

RS ae se Roe Se , Ee eae re are ae 24

Hogan v. State of lowa, 952 F.2d 224 (8th Cir. 1991) .... 17 |

Humphrey v. Cady, 405 U.S. 504 (1972) ..........00. 24 ;

In re Tripati, 836 F.2d 1406 (D.C. Cir. 1988) ......... 22

VEl V:- EOOWG, SOG Ws TET CEO Ee cess ckickbiwnwss 28

Jackson v. State of Louisiana, 452 F.2d 451 (5th Cir.

PRs Sia re BRERA UGE EOE ed Bed ON Uae EF ee 20

Jones v. Cunningham, 371 U.S. 236 (1963)........... 24

Jones v. Perkins, 245 U.S. 390 (1918) ................ 27

Justices of Boston Municipal Court v. Lydon, 466

Sige Oe RE Sa Sn ck at GEO ERE SARE Ee tetas 23

Kane v. State of Virginia, 419 F.2d 1369 (4th Cir.

eg || SREP eR pomp en plies Feng eB ye rere ee 26

King v. Brown, 8 F.3d 1403 (9th Cir. 1993) .......... 11

Lane v. Williams, 455 U.S. 623 (1982) .......... .23, 24

Levy. \. Parker, 396. U.S. 1206 (1969). ow ie nev enes 23

Maleng v. Cook, 490 U.S. 488 (1969) ................ 24

Mannes v. Gillespie, 967 F.2d 1310 (9th Cir. T992).... 28

Marks v. Rees, 715 F.2d 372 (7th Cir. 1983)..........22

Mathis v. Hood, 851 F.2d 612 (2d Cir. 1988)..... Pree

TABLE OF AUTHORITIES - Continued

Page

McEachern v. Henderson, 485 F.2d 694 (5th Cir.

SPER eh kW ORES CON Ko book ede eR EERE aa 19

Miller v. Hambrick, 905 F.2d 259 (9th Cir. 1990)..... 22

Mitchum v. Foster, 407 U.S. 225 Lg 3s See ae ane 27

Nelson v. George, 399 U.S. 224 CR ieee 13, 14

Neville v. Cavanagh, 611 §.2d 673 (7th Cir. 1979) .... 28

Norris v. State of Georgia, 522 F.2d 1006 (4th Cir.

RO oss ee Nea 15, 18, 19

Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir.

BOG 0002 ois CaS SO a ois BE ee 5. 17

Parrette v. Lockhart, 927 F.2d 366 (8th Cir. 1991)....19, 22

Peyton v. Rowe, 391 U.S. 54 PRUNES Gos sa eae cee 8, 23

Pollard v. United States, 352 U.S. 354 2) 7g SES 23

Preiser v. Rodriguez, 93 S.Ct. 1827 (1973) ........... 25

Price v. Johnston, 334 U.S. 266 (1948) ............... Ff

Reed v. Farley, 114 S.Ct. 2291 (1994)............. 10, 29

Reed v. Henderson, 463 F.2d 485 (5th Cir. ROTA 6 x cis 20

Reilly v. Warden, FCI Petersburg, 947 F.2d 43 (2d

CAR CHPRY 605 Sb Eek ke ENE oS 11

Reimnitz v. State’s Attorney of Cook Co., 761 F.2d

Pe Ait RE? AUER SC i nas wea reih eis aee LS: 15

Rutledge v. Sunderland, 671 F.2d 377 (10th Cir.

tea RE EEL Oe Ee OS PUTED Oe BY Ung Sega TPES 24

Sammons v. Rodgers, 785 F.2d 1343 (5th Cir. 1986) .... 18

TABLE OF AUTHORITIES - Continued

Page

Schlanger v. Seamans, 401 U.S. 487 (1971)........... 15

Shelton v. Meier, 485 F.2d 1177 (9th Cir. 1973)....... 21

Smith v. Hooey, 393 U.S. 374 (1969).............. 29, 30

Solsona v. Warden, F.C.I., 821 F.2d 1129 (5th Cir.

gt UR yr relent eee DE OO UREN Aree yt ee ee 19, 20

Stanley v. California Supreme Court, 21 F.3d 359

SO SCAM, SOEs 6 cio ikacnabitia Uva pemeaaae tes Rees 16

Svat a, Siete, GS: Gis DOL. CRED wba 6a ke Raa Reade 13

Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978) .... 11

Subias v. Meese, 835 F.2d 1288 (9th Cir. 1987)....... 16

Sunal wv. Laree, 332 UD. 176 (IGG pena s esses ec sdeys 27

Thompson v. Missouri Board of Parole, 929 F.2d

396 (Btn Cee. T9FE). ow oes cass ei dasa h wR Re eae 19

Tooten v. Shevin, 493 F.2d 173 (5th Cir. 1974) ....... 28

Trainor v. Hernandez, 431 U.S. 434 (1977)........... 28

Trigg v. Mosely, 433 F.2d 364 (10th Cir. 1970) ....15, 21

United States v. Giddings, 740 F.2d 770 (9th Cir.

(| Nene tyes Naren reir gee ey reer ey eat ep eS ee 18

United States v. Mauro, 436 U.S. 340 (1978) ......... 10

United States v. Scott, 803 F.2d 1095 (10th Cir.

OES ka. SPCR SEE PRAM Obb twa O SESS AO REAR OO Re ee 18

United States v. Toole, 65 F.3d 381 (4th Cir. 1995) .... 25

United States ex rel. Meadows v. State of New

York, 426 F.2d 1176 (2d Cir. 1970) ............ 2(

‘

TABLE OF AUTHORITIES — Continued

Page

United States ex rel. Parish v. Elrod, 589 F.2d 327

BRR ORS ARGUE Sn tat pea i er a ene ga 28

United States ex rel. Scranton v. State of New

Sere. Ge eee ee Oe ee POOR ee 28

United States ex rel. Van Scoten v. Commonwealth

of Pennsylvania, 404 F.2d 767 (3d Cir. 1968) ...... 18

Wade v. Mayo, 334 U.S. 672 (1948).................. 13

White v. State of Tennessee, 447 F.2d 1354 (6th Cir.

MMe ya ah ee ad ee te a ac RS et rT it 21

Wingo v. Ciccone, 507 F.2d 354 (8th Cir. 1974) ...19, 22

Wooley v. Maynard, 430 U.S. 705 (1977)............. 27

Word v. State of North Carolina, 406 F.2d 352 44th

Se AE Dhe CPSU Se eee Te i hol oe ear et 21

Wren v. Carlson, 506 F.2d 131 (D.C. Cir. 1974)....... 22

RuLes AND Statutes CItep:

United States Supreme Court Rules, Rule 10(a)... 1, 2, 17

Federal Rules of Appellate Procedure, Rule 3 ........ 5

Federal Rules of Appellate Procedure, Rule 22...... 5

18 United States Code Appendix 2................. iy a

18 United States Code Appendix 2, Section 2, Arti-

OL Sy 5s. ban oan eG onload Huds VAs GR Radke kn kates 12

18 United States Code Appendix 2, Section 2, Arti-

EE wks chiens 4 eas oe eG en eared we C ws do 26

18 United States Code Appendix 2, Section 2, Arti-

WE REE 55 ONG Shred Sees Chak Sev LAOH DeLee Sn 26

xl .

TABLE OF AUTHORITIES —- Continued

Page

28 United States Code § 1254(1) ........ 0... ccc eccee 2

ae arenes wanes Cote © ETO) oo cons oA rhc cc nnn, 5

a5 United States Code § 1404... oo... i ccs cccccucs A

28 United States Code § 1404(a) ............ e000 0-. 16 !

28 United States Code § 1631................. 3, 16, 22 f

28 United States Code § 2101(c) ..................... 2

46 United States Code § 2241 ........ 0.0 cies passim

28 United States Code § 2241(a) .................. 2, 12

28 United States Code § 2241(c)(3)................ 9, 27

oo AIRE SO EE Be TI oo ae ke 16

28 United States Code § 2243.................. 3, 9, 24

ao tareeea States Code © 279) oon aio cic ccs Hos 27 .

25 United States Code § 2252... ooo. in sas cccas, passim '

20 Uinked Gtama Cade § 9088. 5 |

ae Smated Seates Code 2096 ook oo 3, 9

28 United States Code § 2254(a) ............... 4,3: 2

28 United States Code § 2255................-6 5. 9,13 !

40 United States Code § 2263... cceys chase vk, 27 |

Tennessee Code Annotated § 40-31-101, et as, PETE |

Xiil

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS:

United States Constitution, Amendment VI........... 3

United States Constitution, Amendment aS 3

United States Constitution, Article. I, § 10, cl. 3..... 10

PETITION FOR WRIT OF CERTIORARI

This is a Petition for a Writ of Certiorari pursuant to

Rule 10(a), United States Supreme Court Rules, to review

the final order of the United States Court of Appeals for

the Sixth Circuit dismissing an appeal from the order of

the United States District Court for the Eastern District of

Kentucky denying the petition of Thomas J. Dillon (Peti-

tioner) for a writ of habeas corpus under 28 U.S.C. § 2241.

This case arose from the lodging of a detainer by the State

of Tennessee against the Petitioner, who was at the time

of the filing of the petition for a writ of habeas corpus in

the custody of the United States at Lexington, Kentucky,

pursuant to the Interstate Agreement on Detainers (IAD),

18 U.S.C. Appendix 2.!

I. OPINIONS AND ORDERS OF THE LOWER

COURTS ENTERED IN THIS CASE

The following orders and opinions rendered by the

courts in this case are reproduced in the Appendix to this

Petition.

A. STATE COURTS

1. The Knox County Criminal Court, 6th Judicial

District of Tennessee, Order dismissing the indictment,

dated May 17, 1991 is unreported and has been repro-

duced in the Appendix at pp. 10a-1la.

2. The Supreme Court of Tennessee, Opinion par-

tially affirming and partially modifying decision of Ten-

nessee Court of Criminal Appeals, reported as Dillon v.

State, 844 S.W.2d 139 (Tenn. 1992).

‘ The IAD has been adopted by the State of Tennessee and

is codified at T.C.A. § 40-31-101, et seq. All references will be to

the federal codification.

B. FEDERAL COURTS

1. The United States District Court for the Eastern

District of Kentucky, Opinion and Judgment denying

Petitioner’s Petition for a writ of habeas corpus, dated

August 29, 1997 is unreported and reproduced in the

Appendix at pp. 3a-7a.

2. The United States Court of Appeals for the Sixth

Circuit:

a. Order Dismissing Appeal as Moot,

dated March 24, 1998 is unreported and repro-

duced in the Appendix at pp. la-2a.

b. Order Denying Petitioner’s Motion to

Rehear, dated April 27, 1998 is unreported and

reproduced in the Appendix at pp. 8a-9a.

Il. JURISDICTION OF SUPREME COURT

A. Timeliness of Petition

The Order of the United States Court of Appeals for

the Sixth Circuit dismissing the Petitioner’s appeal as

moot was entered on March 24, 1998. The Order of the

United States Court of Appeals for the Sixth Circuit deny-

ing the Petitioner’s Motion for a Rehearing was entered

on April 27, 1998.

This Petition for a Writ of Certiorari was filed on

1998.

B. \ Statutory Jurisdiction of the Supreme Court

This Petition for a Writ of Certiorari is filed pursuant

to Rule 10(a), Supreme Court Rules. The statutory provi-

sions conferring jurisdiction on the United States

Supreme Court to review the judgment in this case on a

Writ of Certiorari are 28 U.S.C. §§ 1254(1) and 2101(c).

Additionally, jurisdiction of the Justices of United States

Supreme Court to issue a writ of habeas corpus is con-

ferred by 28 U.S.C. §§ 2241(a) and 2254(a).

Ill. RELEVANT PROVISIONS OF LAW

The complete texts of the following provisions of law

on which the Petitioner relies in this case are:

Constitution of the United States, Amendments

VI and XIV; 28 U.S.C. § 1404 and 28 USS.C.

§ 1631; 28 U.S.C. § 2241; 28 U.S.C. § 2243; 28

U.S.C. § 2252; 28 U.S.C. § 2254; and Interstate

Agreement on Detainers, 18 U.S.C., Appendix 2.

IV. STATEMENT OF THE CASE AND FACTS

A. United States District Court for the Eastern

District of Kentucky

On March 8, 1996, the Petitioner filed his Petition for

a writ of Habeas Corpus, naming his immediate federal

custodian as Respondent and alleging that he was a fed-

eral prisoner at Lexington, FMC. (Petition for Habeas

Corpus, { 1) The Petitioner alleged that on May 17, 1991,

an order was entered in the Knox County Criminal Court

of the State of Tennessee dismissing an indictment for

failure to try the Petitioner within 120 days of his arrival

in Tennessee in violation of the IAD. The Tennessee trial

court made findings that noncompliance with the contin-

uance provisions of the IAD had occurred when a contin-

uance had been ordered without a hearing or a showing

of good cause. (Id., {J 2-4)? Appeals were taken through

the Tennessee Supreme Court, which reversed the judg-

ment of the trial court. (Id., at {J 5-7) The Petitioner thus

is in custody and subject to the order of a State court

within the meaning of federal habeas corpus statutes. (Id.,

at {7 8-9) In his habeas petition, the Petitioner sought

dismissal of the pending State indictment. (Memorandum

of Law, at pp. 9-10)

In response to this habeas petition, the Respondent

filed a motion to dismiss on May 15, 1996, which was

* Included in the Appendix at 18a-35a is the transcript of

the hearing held in the Tennessee trial court.

docketed by order of the District Court as the Respon-

dent’s Response. (Respondent’s Motion to Dismiss) The

Respondent admitted that the Petitioner was in federal

custody and subject to a detainer as a result of an indict-

ment in the State of Tennessee. (/d., at p. 1) Among other

asserted defenses, the Respondent denied that the Dis-

trict Court had subject matter jurisdiction. (Id., at pp. 3-4,

9-10)

On May 22, 1996, the Petitioner filed an amendment

to his Petition for a Writ of Habeas Corpus, further elab-

orating on violations of the IAD. (Amended Petition, at

pp. 1-5) The Amended Petition also went on to allege that

the Petitioner had been denied his constitutional right to

a speedy trial as a result of the conduct of the State of

Tennessee, causing the loss of crucial exculpatory evi-

dence. (Id., at pp. 5-7) The Petitioner contested the

Respondent's defenses (Id., at p. 6) and stated that, as a

consequence of the pending detainer, the Petitioner had

suffered specified detrimental effects during his federal

incarceration. (Id., at p. 6) Supporting documents were

attached to this Amended Petition. The trial court further

construed the Petitioner’s Supplemental Memorandum in

Support of the Petition, filed on May 22, 1996, as an

Amended Petition. (Order dated May 29, 1996, at p. 1)

On July 1, 1996, the Respondent filed his Response to

the Amended Petition, continuing to deny that the trial

court had jurisdiction. (Response to Amended Petition, at

pp. 2-13) In the context of this on-going jurisdictional

dispute in the District Court, the Petitioner filed his

Response to the Surreply of the United States to the

Amended Petition for Habeas Corpus Relief on August

23, 1996; he specifically invoked the procedure found in

28 U.S.C. § 2252, which provides for notification of State

officers having custody of a habeas petitioner in the

manner directed by the District Court. (Response to Sur-

reply, at pp. 5-6)

The petition was referred to a Magistrate Judge for a

report and recommendation, which was filed on June 10,

1997, and essentially adopted the factual summary of the

“OUP er nerere an...

Se RTE

ee Se

Tennessee Supreme Court in Dillon v. State, (Report and

Recommendation, at pp. 1-4) Concluding that a disputed

issue of fact existed as to why the Petitioner had not been

~ brought to trial following the decision of the Tennessee

Supreme Court, the Report and Recommendation

acknowledged that the Petitioner had always sought a

speedy trial. (Id., at pp. 4-5) Without holding an evidenti-

ary hearing on the identified disputed issues of fact pre-

sented on the face of the record, the Magistrate Judge

recommended that the District Court dismiss the petition

for a writ of habeas corpus, as amended. (Id., at pp. 8-9)

The Petitioner duly filed his objections to the Report

and Recommendation on June 17, 1997. On August 29,

1997, the District Court entered its Opinion and Order

overruling the Petitioner’s objections and adopting the

Report and Recommendation. (Opinion and Order, at pp.

1-2) The judgment of the District Court was entered

accordingly on the same date, together with a certificate

of probable cause. (Judgment, at p. 1)

On September 5, 1997, the Petitioner timely filed his

Notice of Appeal.

B. United States Court of Appeals for the Sixth

Circuit

In conformity with Rule 3, Fed. R. App. P., the Peti-

tioner appealed from the final decision of a District Court

pursuant to 28 U.S.C. § 1291. Additionally, “[i]n a habeas

corpus proceeding . . . the final order shall be subject to

review, on appeal, by the court of appeals for the circuit

where the proceeding is had.” 28 U.S.C. § 2253. See also

Rule 22, Fed. R. App. P.

In its Order of March 24, 1998, the Sixth Circuit

stated that the Respondent had released the Petitioner

from federal prison without turning the Petitioner over to

——— SSE ere

Tennessee authorities. (Sixth Circuit Order, at p. 1)

Despite Petitioner’s constitutional and statutory habeas

claims regarding denial of a speedy trial, the Court rea-

soned that the pending Tennessee indictment on which

the detainer had been premised was not a sufficient

grounds or collateral consequence to prevent the case

from becoming moot. (/d.) Moreover, the Court stated

that a federal court does not possess the power to dismiss

an indictment for a State violation of the IAD. (Id., at p. 2)

Because the State was not before the Court, the Sixth

Circuit found that the Court lacked jurisdiction to issue a

writ even if the Court had the authority to do so. (Id.)

C. Tennessee State Court Proceedings

In its opinion, the Supreme Court of Tennessee

recited the essential facts. Dillon v. State, supra, 844 S.W.2d

at 140-141. Prior to December 11, 1990, the Petitioner was

a federal prisoner at a federal facility in Jesup, Georgia,

when he was transferred from the Jesup facility to the

Knox County Jail in Knoxville, Tennessee, pursuant to the

IAD as a result of a detainer filed by the State of Tennes-

see. On December 11, 1990, the Petitioner was brought to

the State cf Tennessee and arraigned on December 14,

1990, on a State presentment in Knoxville, Tennessee. The

Petitioner at that time and ever since has demanded a

speedy trial under the IAD. On the date initially set for

trial, February 11, 1991, the State moved for and was

granted a continuance because it was not prepared to go

to trial. In addition, the Petitioner’s motion to suppress

certain evidence was granted. On the State’s motion, the

trial date was then reset for April 1, 1991.

> The Court of Appeals failed to state all relevant facts in its

Order. The Petitioner was enlarged under a bond to the State ot

Tennessee at the time of his release from federal custody and

thus was effectively released to the custody of the State o!

Tennessee at that time.

On March 5, 1991, an order was entered by the State

trial court to allow the State to pursue an interlocutory

appeal of the order to suppress. The following day, March

6, 1991, by the State’s ex parte and pro forma motion,

without notice to the Petitioner or his counsel or a hear-

ing in open court with contemporaneous findings of just

cause and reasonable necessity or explaining any disabil-

ity of the Petitioner to stand trial, the trial court entered

an order purporting to continue the trial from the April 1,

1991, date.

On April 22, 1991 (132 days from the date the Peti-

tioner was brought to Tennessee), the Petitioner filed a

motion to dismiss the indictment with prejudice for non-

compliance with the mandatory IAD provisions as to

granting continuances. After a May 2nd hearing in the

State trial court, on May 17, 1991, the trial court entered

its order dismissing the State’s indictment with prejudice

for violation of the speedy trial provisions of the IAD.

The trial court expressly found that the applicable provi-

sions of the IAD had been violated and that the limita-

tions period had not been properly tolled. No finding was

ever made that the Petitioner was unable to stand trial

and no demonstration was made by the State of either

just cause or the reasonable necessity of the continuance

of the case.

On May 20, 1991, the State appealed the dismissal;

the Petitioner’s return to federal custody was stayed by

the Tennessee Court of Criminal Appeals. Subsequently,

following a decision of the State Court of Criminal

Appeals on October 10, 1991, the Petitioner’s State case

reached the Supreme Court of Tennessee, which rendered

its opinion on November 16, 1992. All State remedies

have been exhausted.

V. ARGUMENT IN FAVOR OF GRANTING A WRIT

OF CERTIORARI

Rule 10(a), Supreme Court Rules, states that this

Court will consider granting a writ of certiorari when a

conflict of opinion exists among the United States Courts

of Appeals on an important matter; if an unacceptable

and unusual departure in the course of judicial proceed-

ings has occurred; or when the exercise of this Court's

supervisory powers is required. See generally Braxton v.

U.S., 500 U.S. 344, 347 (1991); Christianson v. Colt Indus-

tries Operating Corp., 486 U.S. 800, 807-808 (1988); Peyton

v. Rowe, 391 U.S. 54, 57-58 (1968). Moreover, the Court has

long accepted cases when “the judgment and opinion

below might seriously hinder future administration of the

law. ...” Federal Trade Commission v. American Tobacco Co.,

274 U.S. 543, 544 (1927). All of these factors are present in

the Petitioner’s case.

The law applicable to petitions for writs of habeas

corpus arising from interstate detainers and the pro-

cedures necessary to vindicate these statutory rights con-

stitute a continuing saga of confusion and dispute

concerning the proper distribution of federal habeas

jurisdiction in such cases. Clarification of the scope of

federal jurisdiction in cases arising under the IAD and of

the fair and just procedures for the disposition of such

habeas claims, including transfers, would both prevent

further repetition of the frustrating outcome of cases like

the Petitioner’s and promote the efficient administration

of justice. More than a simple conflict in the decisions of

Courts of Appeals exists in regard to claims of persons in

the position of the Petitioner; rather, a fundamental pan-

demonium among federal courts endures in a bedlam of

reasoning and results. While the decision of the Sixth

Circuit in this case simply causes unnecessary delay in

the administration of justice, it is merely one example of

the bewildering state of habeas law in this area.

No matter how the facts are diced, this case involves

clear violations not only of the IAD, which, with the

exception of the Tennessee trial court that applied the

manifestly clear requirements of the applicable law, have

never been effectively vindicated according to its unam-

biguous terms, but also violations of the Petitioner’s con-

stitutional rights to a speedy and fair trial. In this Petition

for a Writ of Certiorari, presenting two interrelated

issues, the Petitioner contends not only that federal

courts have complete authority and jurisdiction to fash-

ion appropriate habeas relief in interstate cases arising

under the IAD but that this is an appropriate case for

habeas relief. The Petitioner thus requests that this Court

grant a Writ of Certiorari for a plenary review the Order

of the Sixth Circuit i. this case. Should this Court grant

this Petition, the Petitioner reserves the opportunity to

argue the issues presented in his appeal to the Sixth

Circuit in full at that time.

A. A Federal District Court either in the District of

a Petitioner’s confinement or of the custodian’s

presence has concurrent jurisdiction to issue a

writ of habeas corpus arising from a detainer

filed by a demanding State outside the terri-

torial boundaries of the District Court but, in

the appropriate cases, a District Court should

transfer such petitions to a federal court in the

demanding State in the interests of justice.

The power of a federal court to issue writs of habeas

corpus is found in several statutes. See 28 U.S.C.

§§ 2241-2255. In this case, the Petitioner relied on 28

U.S.C. §§ 2241 and 2254. In addition, the Petitioner

invoked the procedure to provide notice to Tennessee

authorities as provided by 28 U.S.C. § 2252.

More specifically, subject matter jurisdiction lies in

this case under 28 U.S.C. §§ 2241(c)(3) as well as 2254(a).

Under 28 U.S.C. § 2241(c)(3), writs of habeas corpus may

be granted to any person “in custody in violation of the

Constitution or laws or treaties of the United States,” and

under 28 U.S.C. § 2254(a), such writs may be issued “on

the ground that [the petitioner] is in custody in violation

of the Constitution or laws or treaties of the United

States” as a result of the judgment of a State’s courts.

Furthermore, 28 U.S.C. § 2243 provides that a habeas writ

is to “be directed to the person having custody of the

Ce ee ee

person detained” and authorizes a court to “dispose of

the matter as law and justice require.”

Subject matter jurisdiction for the availability of

habeas relief based on violations of the IAD is now well-

settled after this Court’s decision in Reed v. Farley, 114 S.Ct.

2291 (1994), which recognized that “habeas review is avail-

able to check violations of federal laws,” id., at 2297. See

also United States v. Mauro, 436 U.S. 340 (1978); Braden v. )

30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). :

Furthermore, the IAD is a federal law sanctioned by the

Compact Clause of the United States Constitution (Article

I, § 10, cl. 3) and is thus a law of the United States for

habeas purposes. In Carchman v. Nash, 437 U.S. 716 (1985),

the Supreme Court held that the IAD is an interstate

compact subject to uniform federal construction. Id., at

719. See also Reed v. Farley, 114 S.Ct. at 2297.

In Reed v. Farley, supra, the Supreme Court did not

hold that violations of the IAD were not cognizable for

habeas relief. Instead, the Court held

“that a state court’s failure to observe the .. .

IAD .. . is not cognizable [for habeas relief]

when the defendant registered no objection to

the trial date at the time it was set, and suffered

no prejudice attributable to the delayed com-

mencement.”

Id., at 2294. In the Petitioner’s case, the Petitioner has

alleged and it is undisputed that he objected to the viola-

tions of the IAD and consistently asserted his speedy trial

rights at every stage; moreover, he has alleged and is

prepared to demonstrate prejudice as a result of the delay

in his case. Consequently, if a case has the kind of aggra-

vating circumstances attendant to prejudice that justify

habeas relief, it is not precluded in IAD cases. Id., at 2298.

The Court then expressly reserved any decision on the

exact issue presented by the present case, id., at 2300.4

+ Despite a rather extended line of Supreme Court cases

approving federal habeas jurisdiction in the appropriate cases,

f t

These more recent Supreme Court decisions concern-

ing the scope of habeas relief essentially emphasized that

both a nonwaiver and prejudice are requisite to awarding

habeas relief. The Petitioner has repeatedly alleged both

that he has been prejudiced by the conduct of the State in

this case and that he has consistently asserted his statu-

tory and constitutional rights to a speedy trial in a timely

manner. The length of time that has passed without the

opportunity for a speedy trial is so long at this point that

prejudice is presumed under Supreme Court precedent.

E.g., Doggett v. United States, 112 S.Ct. 2686, 2691 (1992).

Ignoring other allegations of prejudice relating to the

IAD violations during Petitioner’s State and federal cus-

tody,° in the context of the denial of the constitutional

right to a speedy trial that also is presented by this

petition, which claim was never addressed by the District

Court at any point, as a result of the delay from October,

1987, the Petitioner lost crucial evidence for his defense,

particularly documentary evidence, some of which has

been destroyed. Appendix at pp. 12a-13a. Such circum-

stances are exactly the kinds of prejudice that have per-

mitted habeas relief in numerous cases decided by the

Supreme Court and Circuit Courts of Appeal.

At the time that the petition for habeas relief was

filed, the Petitioner was incarcerated in the federal

facility at Lexington, Kentucky, to which he had been

the federal circuits remain divided on the exercise of

jurisdiction in IAD cases. E.g., finding jurisdiction, King v.

Brown, 8 F.3d 1403 (9th Cir. 1993); Casper v. Ryan, 822 F.2d 1283

(3d Cir. 1987); against, Cross v. Cunningham, 87 F.3d 586 (1st Cir.

1996); Reilly v. Warden, FCI Petersburg, 947 F.2d 43 (2d Cir. 1991).

The Sixth Circuit has come down on both sides of the issue in

cases such as Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978)

(for), and Browning v. Foltz, 837 F.2d 276 (6th Cir. 1988) (against).

° In the present circumstances, as will be discussed more

thoroughly in the following subsection of this Petition, facing an

unnecessary trial is itself a cognizable form of prejudice for

habeas purposes.

transferred pursuant to his having made bond in the State

of Tennessee. The Respondent held the Petitioner as an

agent for the State of Tennessee and was the Petitioner’s

immediate custodian. Under Article II of the IAD, the

United States was acting as a “Sending State” and the

State of Tennessee was the “Receiving State.” 18 U.S.C.,

Appendix 2, § 2, Article II. Both the United States and the

State of Tennessee were and are parties to the IAD. When

the Petitioner filed his petition for a writ of habeas

corpus, he named his immediate custodian as the

Respondent and in the course of the proceedings

requested that the District Court notify the State of Ten-

nessee as provided by 28 U.S.C. § 2252. The petition was

filed in the Eastern District of Kentucky where both his

immediate custodian was located and where he was then

currently confined.

In Braden v. 30th Judicial Circuit Court of Kentucky,

supra, 410 U.S. 484, this Court addressed a similar circum-

stance in which an Alabama prisoner filed for a writ of

habeas corpus in the Western District of Kentucky where

the petitioner was under an untried indictment. Noting

that sharp conflicts existed in the decisions of federal

courts as to the choice of forum for attacks on interstate

detainers by federal habeas corpus, Id., at 488, the Court

readily concluded that federal jurisdiction existed for

such attacks and recognized that pretrial relief in a crimi-

nal case can be appropriate. /d., at 489-490. In a footnote,

the Court observed that the Alabama warden acted as the

agent of Kentucky in holding the prisoner on the detainer

and that the prisoner was thus in custody within the

meaning of the habeas statutes. Id., at 489, n. 4. Further-

more, in holding that 28 U.S.C. § 2241(a) required no

more than that the Court issuing a writ have jurisdiction

over a custodian, id., at 496, the Court expressly empha-

sized that “[nJothing in this opinion should be taken to

preclude the exercise of concurrent habeas corpus juris-

diction over the petitioner’s claim by a federal district

court in the district of confinement.” Id., at 499, n. 15

cantatas

(emphasis added). The Court rejected “a slavish applica-

tion” of the habeas statutes to avoid “an inflexible juris-

dictional rule, dictating the choice of an inconvenient

forum. ...” Id., at 499-500. The Order of the Sixth Circuit

entered in this case effectively undermines Braden and

reestablishes an inflexible jurisdictional rule.

Since Braden, the existence of concurrent habeas juris-

diction has inconsistently been recognized by lower fed-

eral courts and the proper procedures for challenging

interstate detainers remain at best confusing. The law has

always been that habeas jurisdiction exists in the district

of confinement but more fundamentally jurisdiction cer-

tainly exists when a court can exercise power over the

immediate custodian. E.g., Ex Parte Hayes, 414 U.S. 1327,

1328 (1973). Regardless, this Court has readily extended

the jurisdictional conceptualization of the proper custo-

dian when appropriate to the case. Strait v. Laird, 406 U.S.

341, 344-346 (1972).

This Court’s decision in Wade v. Mayo, 334 U.S. 672

(1948), is clear that rigid adherence to futile procedural

roadblocks to habeas jurisdiction is inconsistent with

good judicial administration and that the habeas pro-

cedure is itself extremely flexible. Id., at 681. Consistently,

in Ex Parte Endo, 323 U.S. 283 (1944), the Court concluded

that simple removal of a petitioner from the territorial

jurisdiction of a district court with personal jurisdiction

over a custodian at the time of the filing of the habeas

petition did not deprive the district court of jurisdiction.

Id., at 304-307.

In Nelson v. George, 399 U.S. 224 (1970), this Court

permitted a California prisoner to attack a North Carolina

detainer in a District Court in California. Remarking that

federal prisoners covered under 28 U.S.C. § 2255 did not

face the jurisdictional problems encountered by State

prisoners attempting to attack interstate detainers under

28 U.S.C. § 2241, the Court recognized that sound judicial

administration would support the exercise of such juris-

diction by a District Court in another State, id., at 228, n.

5, and concluded that a California federal court would be

permitted to exercise habeas jurisdiction in such cases so

long as the petitioner had exhausted his State remedies.

Id., at 229-230. Likewise, in Carbo v. United States, 364 U.S.

611 (1961), this Court determined that the effective

administration of criminal justice under 28 U.S.C. § 2241

supported the exercise of jurisdiction by a federal court in

one State over habeas petitions arising out of the actions

of another State without regard to the territorial jurisdic-

tion of that federal court; however, the Court stated that

historically some writs of habeas corpus could only be

issued in the district of confinement and that jurisdiction

always exists in such a district. Id., at 612-619.

The requirement that the federal court have personal

jurisdiction over the custodian as well as territorial juris-

diction over the habeas petitioner’s place of confinement

is often traced to this Court’s decision in Ahrens v. Clark,

335 U.S. 188 (1948). Braden, however, severely limited the

application of Ahrens and it now stands for an extremely

narrow proposition. Regardless, to the extent that Ahrens

remains viable, it supports the Petitioner’s contention

that he properly filed his habeas petition in the place

where both his immediate custodian and his confinement

were located.

In no decision of the United States Supreme Court

discovered by the Petitioner has this Court expressly or

implicitly held that a district court with jurisdiction over

the present custodian of a habeas petitioner could not

issue a writ of habeas corpus under the circumstances of

this case and fashion such relief as would be appropriate

under the law, including the dismissal of a pending

indictment, which will be more fully discussed in Section

V.B of this Petition. On the contrary, the reported deci-

sions of this Court strongly support the proposition that

concurrent jurisdiction for granting habeas relief exists in

either the district of confinement or the place in which a

custodian is found. Nothing in the habeas statutes

implies that, if a habeas action is otherwise within the

jurisdiction of the District Court, the scope of relief avail-

able is somehow limited by the place in which the court

sits. Cf. Schlanger v. Seamans, 401 U.S. 487, 489-492 (1971).

Nevertheless, some federal courts seem to distin-

guish between habeas petitions attacking detainers based

on the custodian named as a respondent. E.g., Ortiz-

Sandoval v. Gomez, 81 F.3d 891, 894-895 (9th Cir. 1996);

Norris v. State of Georgia, 522 F.2d 1006, 1009-1013 (4th Cir.

1975). The Petitioner contends that the scope of relief

under the habeas statutes does not depend upon the

custodian named in the petition or on the place in which

the court sits. This construction of the habeas statutes is

consistent with a reading of the habeas statutes as a

whole as well as with the purposes of the writ and is

supported by 28 U.S.C. § 2252, which provides that, to

satisfy comity and federalism,

“[p]rior to the hearing of a habeas corpus pro-

ceeding in behalf of a person in custody of State

officers or by virtue of State laws notice shall be

served on the attorney general or other appro-

priate officer of such State as the justice or judge

at the time of issuing the writ shall direct.”

While he specifically relied on this provision in the

District Court, which failed to act on it, the Petitioner

could find no reported cases construing this section of the

habeas statutes but, logically, given the existence of con-

current jurisdiction as recognized in Braden, this statute is

intended to protect the interests of a State in precisely the

circumstances of this case. See Baker v. Wade, 743 F.2d 236,

242, n. 31 (5th Cir. 1984) (habeas statutes contemplate

notice to State representatives, citing without elaboration

§ 2252). Cf. Reimnitz v. State’s Attorney of Cook County, 761

F.2d 405, 409 (7th Cir. 1985) (suggesting notice to true

custodian when immediate custodian has no interest in

opposing habeas relief); Trigg v. Moseley, 433 F.2d 364,

365-367 (10th Cir. 1970) (foreign State prosecutor permit-

ted to intervene in federal habeas proceedings to defend

an interstate detainer). Regardless, in cases in which

relief from a detainer entails dismissal of an indictment

under the IAD, if notice to the State under 28 U.S.C.

§ 2252 is deemed inappropriate for reasons of forum non

conveniens, then, as will be more fully discussed below, a

court should transfer the habeas petition pursuant to 28

U.S.C. §§ 1404(a) and 1631. If subject matter jurisdiction is

otherwise established, as in the present case, dismissal is

clearly inappropriate as a routine matter. While the fore-

going cases appear to provide ample precedent for the

exercise of concurrent jurisdiction in cases such as that of

Petitioner, lower courts have been unable to apply this

rule consistently or fairly. Confusion as to the proper

party to be named as custodian is reflected in the deci-

sions of the federal Courts of Appeals, despite the long

established rule that habeas jurisdiction could be exer-

cised whenever a court had personal jurisdiction over the

immediate custodian. See Bell v. United States, 48 F.3d

1042, 1043-1044 (8th Cir. 1995). See also Subias v. Meese, 835

F.2d 1288 (9th Cir. 1987). Jurisdiction can also exist, how-

ever, whenever a court has jurisdiction over either the

prisoner or the custodian. Brittingham v. United States, 982

F.2d 378, 379 (9th Cir. 1992).

Typically, under 28 U.S.C. § 2242, a petition for

habeas corpus names as the respondent the warden of the

penal facility in which a petitioner is presently incarcer-

ated. E.g., Stanley v. California Supreme Court, 21 F.3d 359,

360 (9th Cir. 1994). If the present custodian is not named,

the District Court in which the case is brought lacks

personal jurisdiction. Id. A case involving a detainer

lodged against a federal prisoner, however, creates a

paradoxical circumstance in which the prisoner is being

detained by his immediate federal custodian on behalf of

and as an agent for a demanding State. When the State

filing the detainer is outside the territorial jurisdiction of

the federal court having jurisdiction over the immediate

custodian, the jurisdictional problem is compounded. The

problem of who is the immediate or ultimate custodian of

a habeas petitioner is thus particularly difficult when a

habeas petitioner is held in one State in immediate con-

finement and another State is seeking detention of the

same prisoner by use of a detainer. Cf. Birdwell v. Skeen,

983 F.2d 1332, 1334, n. 1 (5th Cir. 1993) (substitution of

proper respondent permitted to sustain habeas jurisdic-

tion). For example, in Hogan v. State of lowa, 952 F.2d 224

(8th Cir. 1991), a Nevada prisoner filed a habeas petition

in an Iowa federal court to attack an Iowa State convic-

tion and the Court held that because neither the peti-

tioner nor his Nevada custodian was within the State of

lowa an lowa federal court lacked in personam jurisdic-

tion. Id., at 225.

Despite Braden’s clear holding that concurrent juris-

diction exists to attack a detainer in either the State of

confinement or in the State in which the custodian is

found, if different, in Dunne v. Henman, 875 F.2d 244 (9th

Cir. 1989), a federal inmate in Illinois filed a petition for

habeas corpus to attack a detainer in a Washington (State)

federal court, naming as the respondent his federal war-

den, but the Ninth Circuit construed Braden to require

that the petitioner determine his true custodian, finding

that jurisdiction was lacking because the petitioner failed

to name the proper respondent within the territorial juris-

diction of the Washington federal court. Id., at 248-249.

Similarly, in Birdsell v. State of Alabama, 834 F.2d 920 (11th

Cir. 1987), a federal inmate incarcerated in Oklahoma

attempted to attack the legality of Alabama convictions in

Alabama and the Court of Appeals affirmed the dismissal

of the habeas petition for lack of jurisdiction. Id., at

921-922. See also Hajduk~v. United States, 764 F.2d 795, 796

(11th Cir. 1985). In Ortiz-Sandoval v. Gomez, 81 F.3d 891

(9th Cir. 1996), the Ninth Circuit, despite recognizing that

habeas petitions may be heard either in the place in

which the petitioner is incarcerated or where his immedi-

ate custodian is located, id., at 895, the Court nevertheless

required that a State official be named as a respondent to

establish personal jurisdiction, regardless of the flex-

ibility of the habeas provisions which contemplate a vari-

ety of possible respondents or even multiple respondents.

Id., at 894. On the other hand, in Gibson v. Klevenhagen,

777 F.2d 1056 (Sth Cir. 1985), a Florida State prisoner filed

a habeas petition in a Texas federal court to attack a

detainer and obtain dismissal of a Texas indictment as

required by the IAD. Id., at 1057-1058. The Court of

Appeals relied on Braden in determining that a federal

court has jurisdiction to provide such relief. Id., at 1058.

Although courts often cite Braden and recite its hold-

ing that a court may issue a writ of habeas corpus when it

has jurisdiction over either the prisoner or the custodian,

many of these same courts then limit jurisdiction to the

place of confinement. E.g., United States v. Giddings, 740

F.2d 770, 772 (9th Cir. 1984); Blau v. United States, 566 F.2d

526, 527 (5th Cir. 1978). The Fifth Circuit in Sammons v.

Rodgers, 785 F.2d 1343 (5th Cir. 1986), discussed the pecu-

liarities of jurisdiction in habeas cases arising from the

use of foreign State convictions, recognizing that Braden

clearly permitted such petitions to be brought in either

the State of current confinement or the State of the for-

eign conviction but noting that in some cases jurisdiction

apparently may lie in only one district. Id., at 1345. Under

long established law, however, jurisdiction would always

exist where the petitioner was confined. Id.

In United States v. Scott, 803 F.2d 1095 (10th Cir. 1986),

the Court of Appeals limited jurisdiction in claims

brought under 28 U.S.C. § 2241 to the federal district in

which the prisoner was confined. Id., at 1096. Likewise, in

Hassain v. Johnson, 790 F.2d 1420 (9th Cir. 1986), jurisdic-

tion was limited to the district in which the petitioner

was confined. See also United States ex rel. Van Scoten v.

Commonwealth of Pennsylvania, 404 F.2d 767 (3d Cir. 1968).

Decided after Braden, in Norris v. State of Georgia, 522

F.2d 1006 (4th Cir. 1975), a North Carolina prisoner

sought a writ of habeas corpus from a federal court in the

State of his detention to challenge detainers lodged by

the States of Georgia and Louisiana. The petition named

the warden of the North Carolina prison, other North

Carolina officials and the States of North Carolina, Geor-

gia, and Louisiana. Id., at 1008. Without reference to 28

U.S.C. § 2252, notice was provided to representatives of

the foreign States. Id., at 1009. Distinguishing between the

effect of the detainer and the remedy for illegally lodging

or maintaining a detainer, the Court recognized that a

court in the place of confinement had jurisdiction to

entertain a habeas petition arising from a foreign detainer

but limited the available relief to removing the effects of

the detainer. Id., at 1010. The Court distinguished Braden

without addressing its holding concerning the existence

of concurrent jurisdiction and found that no personal

jurisdiction existed in the district of confinement that

would allow such a court to enforce its judgment in a

foreign jurisdiction. Id. The Court rejected the theory that

the warden of the prison was acting as a agent for the

purpose of establishing in personam jurisdiction. Id., at

1011. A lengthy discussion concerning limitation on the

scope of relief available in such situations was under-

taken by the Court. Id., at 1011-1013. Despite Braden. the

Court concluded that federal district courts in the

demanding States were the only places in which complete

relief could be obtained. Id., at 1013. In partial disseni,

Judge Winter contended that the warden was the agent of

the demanding States and that under Braden, jurisdiction

existed in North Carolina to provide complete relief from

the detainers. Id., at 1014-1019. See also Wingo v. Ciccone,

507 F.2d 354, 355-357 (8th Cir. 1974); Grant v. Hogan, 505

F.2d 1220, 1222-1225 (3d Cir. 1974); McEachern v. Hender-

son, 485 F.2d 694, 695-696 (5th Cir. 1973). Cf. Galaviz-

Medina v. Wooten, 27 F.3d 487, 493-494 (10th Cir. 1994).

In contrast to these foregoing cases, in Thompson v.

Missouri Bd. of Parole, 929 F.2d 396 (8th Cir. 1991), a

federal prisoner located in Minnesota filed a habeas peti-

tion in the State of his confinement. The Court recognized

that habeas is the proper method for challenging a State

detainer and, despite the fact that the Missouri Board of

Parole was not located in Minnesota, held that venue lay

in the State of his immediate custodian (Minnesota). Id.,

at 398. Similarly, in Parette v. Lockhart, 927 F.2d 366 (8th

Cir. 1991), a federal prisoner in Arkansas was permitted

to attack a Louisiana detainer in the State of his confine-

ment, relying on Braden. Id. The Fifth Circuit in Solsona v.

Warden, F.C.I., 821 F.2d 1129 (5th Cir. 1987), held that

habeas petitions under 28 U.S.C. § 2241 may be filed in

any court with jurisdiction over the prisoner or his custo-

dian. Id., at 1132. The District Court in which the Peti-

tioner filed in the case sub judice had jurisdiction over

both the Petitioner and his immediate custodian, who

was acting as an agent for the State of Tennessee at the

time the Petition was filed.

Concurrent jurisdiction on the basis of this agency

theory was upheld in Fest v. Bartee, 804 F.2d 559 (9th Cir.

1986), in a case involving the Interstate Corrections Com-

pact, when a State prisoner serving a Nebraska sentence

in a Nevada State prison filed a habeas petition in a

Nevada federal court. The Court concluded that jurisdic-

tion was proper in the State of incarceration where the

immediate custodian was found on the basis that such

custodian was acting as a agent for Nebraska. Id., at 560.

In Dillworth v. Barker, 465 F.2d 1338 (5th Cir. 1972),

another pre-Braden decision which arose under the Uni-

form Act for Out-of-State Parolee Supervision, the inter-

state compact between South Dakota and Florida created

an agency relationship sufficient for jurisdiction to attach

but the Court concluded that disposition for reasons of

forum non conveniens would be appropriate, although

expressing concern that the petitioner could be subject to

jurisdictional problems in States in which he was not

confined. Id., at 1340-1341.

The confused state of the law regarding habeas juris-

diction in interstate detainer cases existing prior to Braden

is reflected in Reed v. Henderson, 463 F.2d 485 (5th Cir.

1972). See also Jackson v. State of Louisiana, 452 F.2d 451,

453-454 (5th Cir. 1971) (jurisdictional difficulties in habeas

detainer cases discussed); United States ex rel. Meadows v.

State of New York, 426 F.2d 1176, 1179-1183 (2d Cir. 1970)

(characterizing the uncertain state of the law of jurisdic-

tion); Brown v. State of Arkansas, 426 F.2d 677, 677-680 (8th

Cir. 1970). Jurisdiction of a Kansas federal court over a

Virginia State detainer was approved by the Tenth Circuit

in Campbell v. Commonwealth of Virginia, 453 F.2d 1230

(10th Cir. 1972). See also Bedwell v. Harris, 451 F.2d 122, 122

(10th Cir. 1971). The Tenth Circuit, however, has limited

jurisdiction to the removal of the effects of the detainer

but required the petitioner to seek other relief in the

demanding State. Trigg v. Moseley, supra, 433 F.2d at 366.

In Shelton v. Meier, 485 F.2d 1177 (9th Cir. 1973), decided

shortly after Braden a federal prisoner in Washington

State filed a habeas petition to attack a California State

conviction and the Court limited Braden to situations in

which concurrent jurisdiction would exist only if a pre-

sent effect of the conviction on the petitioner existed in

both jurisdictions. Id., at 1178.

In a pre-Braden decision, the Sixth Circuit itself did

not permit a prisoner confined in a Kansas federal prison

to file a habeas petition in a Tennessee federal court to

challenge a Tennessee detainer. White v. State of Tennessee,

447 F.2d 1354, 1354-1355 (6th Cir. 1971). Logically, accord-

ing to Sixth Circuit law, either such a petitioner must file

in the place of his confinement or nowhere but, ironically,

the Sixth Circuit’s decision in the present case limits the

Petitioner to filing a habeas petition only in Tennessee

where the ultimate custodian is apparently found but

where the Petitioner was not held in immediate custody

at the tirhe the petition was filed.

While Braden would appear to have resolved this

jurisdictional tension, clearly the confusion existing in the

law prior to this Court’s decision in Braden continues to

haunt the subsequent decisions of the federal courts. The

morass described in Word v. State of North Carolina, 406

F.2d 352 (4th Cir. 1969), entangled in distinctions concern-

ing the scope of available relief depending upon the

custodian named, is equally representative of the contem-

poraneous state of the law, which is thoroughly discussed

in Chatman-Bey v. Thornburgh, 864 F.2d 804, 810-814 (D.C.

Cir. 1988).

Moreover, after Braden, transfer rather than dismissal

would be the preferred disposition of habeas claims aris-

ing from interstate detainers as it would encourage judi-

cial efficiency and serve the interests of justice. Braden,

supra, 410 U.S. at 499, n. 15. Further, transfer would serve

the purposes of habeas corpus consistent with its flexible

nature. This Court expressly disapproved of the very

“perpetual game of jurisdictional pingpong” in Christian-

son v. Colt Industries Operation Corp., supra, 486 U.S. at 818,

to which the Petitioner has been relegated by the Sixth

Circuit’s decision in this case. Cf. Marks v. Rees, 715 F.2d

372, 373-375 (7th Cir. 1983) (retransferring habeas case).

Transfer is favored under federal law. See Goldlawr, Inc. v.

Heiman, 369 U.S. 463, 465-467 (1962). Moreover, transfer

would avoid any potential problems arising from abuse

of the writ. Cf. Wingo v. Ciccone, 507 F.2d at 357, n. 9.

Transfer of habeas cases is the usual practice. Denjanjuk v.

Meese, 784 F.2d 1114, 1115 (D.C. Cir. 1986) Failure to

consider whether a transfer is appropriate under either 28

U.S.C. §§ 1404 or 1631 constitutes an abuse of discretion.

Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (trans-

fer particularly appropriate when petitioner has other-

wise demonstrated jurisdiction). See also Chatman-Bev v.

Thornburgh, supra, 864 F.2d at 814, n. 10. But see Anderson

v. United States, 898 F.2d 751, 752-753 (9th Cir. 1990)

(transfer not mandatory).

In Parette v. Lockhart, 927 F.2d 366 (8th Cir. 1991),

although the Court of Appeals concluded that jurisdiction

existed in an Arkansas federal court to determine the

validity of a Louisiana detainer, the Court noted that a

transfer on grounds of forum non conveniens would not

be inappropriate. Id., at 366 (citing Braden). See also In re

Tripati, 836 F.2d 1406, 1407 (D.C. Cir. 1988); Wren v. Car-

lson, 506 F.2d 131, 134 (D.C. Cir. 1974).

Clearly because subject matter jurisdiction existed in

this case and it involved a claim arising from violations of

the IAD, the Court of Appeals and the District Court both

had the obligation to notify the proper custodian pur-

suant to 28 U.S.C. § 2252 and to transfer this case, if

necessary, in the interests of justice.

B. A Petition for a Writ of Habeas Corpus is not

moot when the Petitioner is released from cus-

tody if the nature of the relief sought is not

affected and is appropriate under the circum-

stances of the case.

In its Order, the Sixth Circuit concluded that the

Petitioner’s case was rendered moot when the Respon-

dent released the Petitioner from custody without surren-

dering the Petitioner to Tennessee authorities. Ignoring

this incomplete and inadequate statement of the relevant

facts, the Sixth Circuit’s conclusion is nevertheless

entirely contrary to the law and constitutes a radical

departure . «* 1 established habeas procedures. Although

mootness can arise at any stage of litigation, Calderon v.

Moore, 116 S.Ct. 2066, 2067 (1996), as long as a court can

grant “ ‘many effectual relief whatever’ ” to the party

then a case cannot be considered moot. Id. (citations

omitted). See also Church of Scientology of California v.

United States, 506 U.S. 9, 12 (1992); Peyton v. Rowe, 391

U.S. 54, 66-67 (1968); Pollard v. United States, 352 U.S. 354,

358 (1957).

This Court has repeatedly held that simple release

from custody, unless unconditional, will not of itself nec-

essarily deprive a court of habeas jurisdiction. In Board of

Pardons v. Allen, 482 U.S. 369, 371, n. 1 (1987), the case

was not mooted by release because the relief sought

extended beyond simple release from custody. See also

Levy v. Parker, 396 U.S. 1204, 1205 (1969). Likewise, in Lane

v. Williams, 455 U.S. 624 (1982), mootness attached only

because no further detention or restraint was possible

under the facts of the case and the prisoners faced no

other collateral consequences. Id., at 630-634. See also

Eagles v. United States, 329 U.S. 304, 306-307 (1946). In the

case sub judice, the Petitioner is currently under indict-

ment and enlarged on bond and thus is under present

restraints on his liberty. Justices of Boston Municipal Court

v. Lydon, 466 U.S. 294, 300 (1984); Gilliam v. Foster, 75 F.3d

881, 885, n. 1 (4th Cir. 1996).

In habeas cases, the existence of custody at the time

that the petition is filed is sufficient to establish jurisdic-

tion and subsequent release will not invariably render

habeas claims moot. See Gosa v. Mayden, 413 U.S. 665, 670,

n. 1 (1973); Jones v. Cunningham, 371 U.S. 236, 238 and

240-241 (1963); Barry v. Bergen County Probation Dept., 128

F.3d 152, 159 (3d Cir. 1997); Rutledge v. Sunderland, 671

F.2d 377, 379 (10th Cir. 1982). As this Court recognized in

Hensley v. Municipal Court, San Jose Milpitas J. D. Cal., 411

U.S. 345 (1973), the concept of custody in habeas cases is

broad and flexible. Id., at 351-353. Conditional release

from prison does not justify disposition of a habeas peti-

tion on grounds of mootness but may make necessary

affording a petitioner an opportunity for the substitution

of another named custodian. Humphrey v. Cady, 405 U.S.

504, 506, n. 2 (1972). Cf. Guerra v. Meese, 786 F.2d 414,

416-417 (D.C. Cir. 1986).

Mootness and custody are distinct concepts in habeas

cases. Since jurisdiction existed when the habeas petition

was filed and relief may presently be granted, the Peti-

tioner’s release cannot render the case moot. Carafas v.

Lavallee, 391 U.S. 234, 236-239 (1968); Escobedo v. Estelle,

655 F.2d 613, 614-615 (5th Cir. 1981). Cf. Maleng v. Cook

490 U.S. 488, 490-492 (1989); Ex Parte Endo, supra, 323 U.S.

at 305-306; Mathis v. Hood, 851 F.2d 612, 614 (2d Cir. 1988)

(appeal not moot when unconditional release is sought).

This Court’s decision in Carafas v. Lavallee, supra, 391 U.S.

at 237-240, rejected the very niggardly reading of the

habeas statutes implicitly contained in the Sixth Circuit's

Order. Under 28 U.S.C. § 2243, a habeas petition is to be

disposed of “as law and justice require” and as long as

the court may award some relief to a habeas petitioner

the case cannot be considered moot.

Presently pending against the Petitioner in the State

of Tennessee is a ten year old untried indictment on

which the detainer filed in this case was premised. This

indictment remains subject to dismissal. Lane v. Williams,

455 U.S. 624, 634 (1982). The Petitioner has presented the

precise issues raised by this petition to the courts of the

State of Tennessee and the highest court of that State has

denied relief to the Petitioner. Preiser v. Rodriguez, 93 S.Ct.

1827, 1830 (1973). The Petitioner has exhausted avaiiable

State remedies and is subject to custody under the court

order of a State as a result of a detainer lodged pursuant

to the IAD. Consequently, what is essential for habeas

relief is the illegality of custody, id., at 1833, not the

nature or timing of the order or authority on which

custody is predicated; thus, anticipatory applications to

prevent trials on invalid indictments or to prevent future

illegal confinement are legitimate uses of the writ. Id., at

1834-1835.

Consistent with Preiser and Braden, in a number of

Circuit Court cases applications for writs of habeas

corpus have been approved in anticipation of a State trial.

As the Court of Appeals stated in United States v. Toole, 65

F.3d 381, 383 (4th Cir. 1995) (citation omitted),

“[t]he purpose of habeas corpus is to test the

legality of detention. . . . Pretrial petitions for

habeas corpus ‘are properly brought under 28

U.S.C. § 2241, which applies to persons in cus-

tody regardless of whether final judgment has

been rendered and regardless of the present sta-

tus of the case pending against him.’ ”

See also, e.g., Cavallaro v. Wyrick, 701 F.2d 1273, 1274-1275

(8th Cir. 1983) (characterizing the wording of the IAD as

strong and violations as nontechnical in granting pretrial

habeas relief for IAD violation under § 2241); Gilstrap v.

Godwin, 517 F.2d 52, 53 (4th Cir. 1975) (pretrial application

for habeas relief not premature when based on the

invalidity of a detainer). More particularly,

“an allegation of a state prisoner, that he has

been denied rights under the [IAD], is an allega-

tion that he is in custody in violation of a law of

the United States, and the requirement for fed-

eral habeas corpus jurisdiction under 28 U.S.C.

§ 2254(a) is met.” |

Echevarria v. Bell, 579 F.2d 1022, 1025 (7th Cir. 1978).

Respondent’s repeated contentions below, accepted by

the Sixth Circuit, as to the lack of jurisdiction in this case

because the Petitioner has not yet been tried on the

pending State charges completely misapprehends, if not

intentionally ignores, the nature of the violation involved

in this case: the Petitioner should not be tried at all

because the IAD requires that the indictment be dis-

missed. Obviously, as recognized by the applicable

habeas statutes, the very point of obtaining habeas relief

in this case at this juncture is to prevent a trial that

should never occur. Clearly, further delay would be

highly prejudicial and the available legal remedy would

be wholly inadequate in this case. Thus the Petitioner

needs immediate and prospective habeas relief.

In this case, the Petitioner seeks to enforce the sole

statutory remedy of the IAD, which is dismissal of an

indictment, as well as to vindicate his constitutional

speedy trial rights. See 18 U.S.C., Appendix 2, § 2, Articles

III(d) and IV(e). See also Gibson v. Klevenhagen, supra, 777

F.2d at 1058; Kane v. State of Virginia, 419 F.2d 1369,

1372-1373 (4th Cir. 1970). The nature of the remedy

sought by the Petitioner was and is not limited to

removal of the effects of the detainer during his federal

incarceration. Since the Petitioner continues to be under

the very indictment challenged in this proceeding and is

currently under bond as a result of that indictment, his

release could not have affected the remedy appropriate

under prevailing law. The Sixth Circuit’s reliance on

Burrus v. Turnbo, 743 F.2d 693 (9th Cir. 1984), and its

procedural progeny, is unexplained and unelaborated,

particularly since the remedy sought by the petitioner in

Burrus related only to the conduct of his federal custo-

dian, id., at 699, rather than to relief from an indictment.

Certainly when a federal prisoner is released and his

claim related solely to the conduct of his federal custo-

dian, then mootness may well result but such is not the

case presented by the Petitioner. See Escobedo v. Estelle,

655 F.2d 613, 614-617 (5th Cir. 1981). Clearly, the Peti-

tioner is both in custody for the purposes of the habeas—

statutes and the Court can grant relief from such custody

See Harrison v. State of Indiana, 597 F.2d 115, 117-118 (7th

Cir. 1979); Commonwealth of Pennsylvania v. Merlo, 364

A.2d 391, 395 (Pa. 1976).

Obviously, but contrary to the Sixth Circuit’s Order,

the existence of a pending indictment constitutes the kind

of custody for which habeas relief is available in the

proper cases. E.g., Sunal v. Large, 332 U.S. 174, 179-180

(1947). This relief is expressly contemplated by the habeas

statutes. In Braden, supra, this Court itself approved

habeas relief prior to trial in an interstate detainer case.

410 U.S. at 489-492. Pretrial habeas relief may be excep-

tional but it is not dependent on whether an indictment

carries the civil disabilities of a conviction, as stated by

the Sixth Circuit in its Order, but rather when pretrial

relief is available, it is to remedy a present impairment of

liberty. See Jones v. Perkins, 245 U.S. 390 (1918); Ex Parte

Royall, 117 U.S. 241 and 254 (1886). As this Court stated in

Price v. Johnston, 334 U.S. 266, 283 (1948),

“the principle has developed that the writ of

habeas corpus should be left sufficiently elastic so

that a court may, in the exercise of its proper

jurisdiction, deal effectively with any and all

forms of illegal restraint. The rigidity which is

appropriate to ordinary jurisdictional doctrine

has not been applied to this writ.”

When federal law expressly authorizes a federal

court to interfere with State proceedings, 28 U.S.C. § 2283,

as in the present case under 28 U.S.C. §§ 2241(c)(3) and

2251, then no barrier exists for the exercise of federal

jurisdiction prior to a State criminal trial. See Gilliam v.

Foster, 61 F.3d 1070, 1083, n. 11 (4th Cir. 1995). Some

situations, however rarely occurring, require pretrial

intervention to address a serious deprivation of liberty

for which no other remedy exists. See Wooley v. Maynard,

430 U.S. 705, 710-712 (1977); Mitchum v. Foster, 407 U.S.

225, 228-230, 234-235 (1972) (specifically citing habeas

proceedings as authority for interfering with a State crim-

inal trial); Calderon v. Moore, supra, 116 S.Ct. at 2067

(availability of pretrial relief prevented mootness). Sve

also Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992);

Neville v. Cavanagh, 611 F.2d 673, 675-676 (7th Cir. 1979);

United States ex rel. Parish v. Elrod, 589 F.2d 327, 328 (7th

Cir. 1979). Manifestly, federal law is clear that an indict-

ment can be a sufficient basis for habeas relief. E.g., Irvin

v. Dowd, 366 U.S. 717, 728-729 (1961).

So long as a petitioner has exhausted the available

State remedies, as is the case sub judice, then federal

courts are permitted to release State prisoners prior to

trial. Tooten v. Shevin, 493 F.2d 173, 175 (5th Cir. 1974);

United States ex rel. Scranton v. State of New York, 532 F.2d

292, 294 (2d Cir. 1976). In this case, certainly no point

exists in further litigating the issue in a State court, as the

Petitioner would be bound by the law of the case, and

because the Petitioner should not be tried at all as a result

of the violations of his statutory and constitutional rights,

dismissal of the indictment is the only appropriate rem-

edy. See Trainor v. Hernandez, 431 U.S. 434, 440-442 (1977).

None of the policy reasons for restraint from interference

with a State criminal proceeding apply in this case. Fay v.

Noia, 372 U.S. 391, 398-399 (1963). The question is not the

existence of federal authority to dismiss an indictment, as

the Sixth Circuit held in this case, but whether federal

habeas power should be exercised under the circum-

stances of this case. Id., at 418, 430-431. See also Frisbie v.

Collins, 342 U.S. 519, 520-521 (1952).

The primary purpose of the IAD is to protect pris-

oners, Cuyler v. Adams, 449 U.S. 433, 449-450 (1981), but in

the present case the IAD has been construed and applied

in a manner that both is inconsistent with the remedial

purposes of the statute and has resulted in the very

mischief the IAD was designed to prevent. The Peti-

tioner’s allegations are undisputed that he has attempted

to obtain the protection and remedies of the IAD from the

time that he first learned of the charges against him in

October, 1987. In addition, the Petitioner has since Octo-

ber, 1987, attempted to obtain a speedy trial on the pend-

ing indictment. Until his release from federal custody, a

4 at tage Hes Aaa NR.

29 .

decade after the initiation of the State charges, the Peti-

tioner was subject to a detainer that was several years old

and, as of the date of this Petition, he has still never had a

trial on the State charges pending against him. Evidence

crucial to his defense has now been permanently lost due

to the delay. His rehabilitation was interrupted; federal

parole was denied to him.

The State of Tennessee has the duty to provide the

Petitioner with both a speedy and a fair trial. Barker v.

Wingo, 407 U.S. 514, 527-529 (1972); Smith v. Hooey, 393

U.S. 374, 383 (1969). The requirement that a habeas peti-

tioner show prejudice has been satisfied on the present

allegations of the petition, as amended. Fundamental

defects that inherently result in a miscarriage of justice

are presented by this petition. In the face of repeated

demands by the Petitioner, the State of Tennessee has

ignored or excused the exacting requirements of the IAD,

defeating the remedial purposes of the statute and

depriving the Petitioner of a liberty interest in its pro-

cedures and remedies. As in Braden all the Petitioner asks

is that the State conform to its legal duty. 410 U.S. at

491-492. As the Supreme Court itself recognized in Reed v.

Farley, 114 S.Ct. at 2297,

“Iw]e have stated that habeas review is avail-

able to check violations of federal laws when the

error qualifies as ‘a fundamental defect which

inherently results in a complete miscarriage of

justice, [or] an omission inconsistent with the

rudimentary demands of fair procedure. .. . ’

The IAD’s purpose — providing a nationally uni-

form means of transferring prisoners between

jurisdictions — can be effectuated only by nation-

ally uniform interpretation. . . . Therefore, the

argument that the compact would be under-

mined if a State’s courts resisted steadfast

enforcement, with total insulation from [habeas]

review, is not without force.”

(Citations omitted.) While Reed did not present a case in

which a timely demand for a speedy trial under the IAD

had been made, id., the Petitioner’s case presents pre-

cisely the case reserved by the Supreme Court's decision

in Reed, id., at 2300.

Since the presumption of prejudice due to delay

increases with time, Doggett v. United States, 112 S.Ct. at

2691, and an eight year delay is extraordinary, id., the

Petitioner’s speedy trial claim is obviously cognizable for

habeas purposes. The very concerns addressed in Doggett,

id., at 2692-2693, are present in this case. As recognized

by the Magistrate Judge in his Report and Recommenda-

tion, from October, 1987, the Petitioner has consistently

asserted his constitutional and statutory rights to a

speedy trial on the State charges involved in this case. Cf.

Smith v. Hooey, supra, 393 U.S. 374 (federal prisoner sub-

ject to interstate detainer denied speedy trial). As it pres-

ently stands, the Petitioner has been denied a trial on the

present charges for almost a decade. This crucial fact is

uncontested. Yet on such egregious facts, the government

has also persistently contended and the Sixth Circuit as

well as other federal circuits have concluded that the

federal courts have no jurisdiction to grant habeas relief

in this case.

VI. CONCLUSION

Given the anarchical state of the law concerning the

proper exercise of jurisdiction in habeas cases arising

from interstate detainers, further guidance by this Court

is obviously required. The Petitioner thus requests that

this Court grant his Petition for a Writ of Certiorari for a

plenary review of the proceedings in this case.

Respectfully submitted,

Douctas A. TRANT, #6871

Counsel of Record

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

She dete RN aN le RS ER A Ge PAR eT MALE Bs

APPENDIX

No. 97-6154

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS J. DILLON,

Petitioner-Appellant,

ARTHUR BEELER, Warden,

FMC, Lexington,

)

beh ) ORDER

)

) (Filed Mar. 24, 1998)

)

Respondent-Appellee.

Before: KEITH, SUHRHEINRICH, and DAUGHTREY,

Circuit Judges.

Thomas J. Dillon, through counsel, appeals a district

court order denying his petition for a writ of habeas

corpus. 28 U.S.C. § 2241. Dillon filed his action against a

federal warden to challenge the validity of a State of

Tennessee detainer placed against Dillon. The warden has

moved to dismiss the appeal as moot because the warden

granted Dillon his release from the federal prison without

turning him over to Tennessee authorities. The warden

argues that this release moots the appeal. See Burrus v.

Turnbo, 743 F.2d 693 (9th Cir. 1984), vacated with instruc-

tions to dismiss as moot, Hijar v. Burrus, 474 U.S. 1016

(1985) (as explained in State v. Burrus, 729 P.2d 935, 936

(Ariz. 1986)). The warden’s argument is well-taken.

Dillon argues that collateral consequences prevent

the case from becoming moot. See Carafas v. LaVallee, 391

U.S. 234 (1968). However, the collateral consequences

described in Carafas flow from a felony conviction. Dillon

is challenging an indictment, and an indictment does not

carry the civil disabilities that a felony conviction creates.

Dillon also argues that a federal court does possess

the power to dismiss an indictment when a state violates

the Interstate Agreement on Detainers. See Stroble v.

Anderson, 587 F.2d 830 (6th Cir. 1978). In Stroble, unlike in

the present case, the state (Michigan) which issued the

detainer was before the court as the respondent. There-

fore, the court could issue an appropriate writ. In Dillon’s

case, the state is not before the court, and the court lacks

the jurisdiction necessary to issue a writ. See Oritz-

Sandoval v. Gomez, 81 F.3d 891, 894-96 (9th Cir. 1996).

The motion to dismiss the appeal as moot is granted.

ENTERED BY ORDER OF THE

COURT

/s/ Leonard Green, jr.

Clerk

eae

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 96-110

THOMAS J. DILLON, PETITIONER,

ARTHUR BEELER, RESPONDENT.

OPINION AND ORDER

(Filed Aug. 29, 1997)

The petitioner, Thomas J. Dillon, a federal prisoner

previously incarcerated at FCI-Jessup, Georgia, and cur-

rently incarcerated at FMC-Lexington, filed a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He

seeks to have pending Tennessee state charges for murder

dismissed based upon the alleged violations of the Inter-

state Agreement on Detainers (“IAD”). 18 U.S.C. App.

§ 2. Consistent with local practice, this matter was

referred to the United States Magistrate Judge for devel-

opment of the record.

The Magistrate Judge filed a Report and Recommen-

dation on June 17, 1997. In her report, the Magistrate

Judge found that in fact Tennessee did not begin Dillon’s

trial within 120 days of Dillon’s arrival in Tennessee.

However, the Magistrate Judge concluded that because

Dillon signed a clear and sweeping waiver surrendering

his rights under the IAD, Dillon cannot state a claim for

relief for IAD violations. Accordingly, the Magistrate

Judge recommended that this Court dismiss Dillon’s peti-

tion with prejudice.

Dillon filed objections to the Report and Recommen-

dation on June 17, 1997. This Court must make a de novo

determination of those portions of the Magistrate Judge’s

Report and Recommendation to which objection is made.

28 U.S.C. § 636(b)(1)(C). Dillon argues that it is not clear

that prisoners can waive their IAD rights. Further, Dillon

contends that, despite the clear language of the waiver,

he did not intend to waive all of his IAD rights, but

rather just those pertaining to the anti-shuttling provision

of Article IV of the IAD. The Court finds Dillon’s argu-

ments meritless.

The Court, having examined the record and having

made a de novo determination, is in agreement with the

Magistrate Judge’s finding that Dillon waived his rights

under the IAD by signing a full waiver of the same, and

as such, that his petition alleging violations thereof must

be dismissed.

Accordingly, the Court hereby ORDERS:

(1) the objections of the petitioner, Thomas J. Dillon,

to the Magistrate Judge’s Report and Recommendation

[docket entry 27] ARE OVERRULED;

(2) the Magistrate Judge’s Report and Recommen-

dation [docket entry 26] IS ADOPTED as and for the

opinion of the Court; and

(3) a Judgment will be entered contemporaneously

with this Opinion and Order in favor of the respondent,

Arthur Beeler, Warden FMC-Lexington.

This 29th day of August, 1997.

/s/ Karl S. Forester

KARL S. FORESTER, JUDGE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 96-110

THOMAS J. DILLON, PETITIONER,

ARTHUR BEELER, RESPONDENT.

JUDGMENT

(Filed Aug. 29, 1997)

In accordance with the Opinion and Order entered

contemporaneously with this Judgment, the Court hereby

ORDERS AND ADJUDGES:

(1) the petition for a writ of habeas corpus is DIS-

MISSED WITH PREJUDICE, and judgment is entered in

favor of the respondent, Arthur Beeler.

(2) pursuant to 28 U.S.C. § 2253, a certificate of

probable cause to appeal shall issue as to the following

questions: Whether Thomas J. Dillon waived his right to

assert a claim for a violation of the Interstate Agreement

on Detainers; and if not, whether the Tennessee state

murder charges against Dillon must be dismissed for

Tennessee’s failure to bring Dillon to trial within 120 days

of Dillon’s presence in Tennessee.

(3) under the Prison Litigation and Reform Act,

Public Law 104-134, a prisoner, unless destitute, must pay

fees and costs for all civil litigation, including appeals, on

an installment basis. Specifically, the district court must

| eee meee errr

assess, and when funds exist, collect, an initial partial

filing fee of twenty percent of the greater of:

(A) the average monthly deposits to the pris-

oner’s account, or

(B) the average monthly balance in the pris-

oner’s account for the prior six month

period.

Thereafter, prisoners are required to make monthly pay-

ments of 20 percent of the preceding month’s income. The

agency having custody of the prisoners must forward

payments from their accounts to the clerk of the court

each time the amount in the accounts exceeds $10 until

the filing fees are paid.

Should Dillon desire to proceed without prepayment

of fees; NO LATER THAN TEN DAYS AFTER THE

ENTRY OF THIS ORDER Dillon shall FILE an application

to proceed without prepayment of fees and affidavit,

which includes a certificate signed and dated by an

authorized officer of the institution of incarceration set-

ting out:

(i) the average monthly deposits to Dillon’s

account, and

(ii) the average monthly baiance in Dillon’s

account for the prior six month period.

Upon receipt of Dillon’s application, the Court will make

the appropriate determination regarding the initial par-

tial filing fee pursuant to the Prison Litigation and

Reform Act;

(4) this judgment is final and appealable, and no

just cause for delay exists; and

(5) this matter IS STRICKEN from the active docket.

This 29th day of August, 1997.

/s/ Karl S. Forester

KARL S. FORESTER, JUDGE

No. 97-6154

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS J. DILLON,

Petitioner-Appellant,

Vv. ORDER

ARTHUR BEELER, Warden, FMC, (Filed

Lexington, Apr. 27, 1998)

Respondent-Appellee.

BEFORE: KEITH, SUHRHEINRICH, and DAUGHTREY,

Circuit Judges.

Thomas J. Dillon, through counsel, petitions for

rehearing of this court’s order dismissing as moot his

habeas corpus petition. 28 U.S.C. § 2241. Counsel notes

that Judge Daughtrey, in her former position as justice of

the Tennessee Supreme Court, ruled upon the validity of

the indictment which underlies this case. Dillon argues

that it was, therefore, inappropriate for Judge Daughtrey

to sit on the panel.

Under 28 U.S.C. § 455(a), a judge is required to

recuse herself if the judge’s impartiality might reasonably

be questioned. Opinions held by judges as a result of

what they learned in earlier proceedings are not bias [sic]

or prejudice requiring recusal unless the judge demon-

strates a deep-seated antagonism toward the party. Liteky

v. United States, 510 U.S. 540, 551, 554-55 (1994). Here the

Tennessee Supreme Court’s decision, written by Justice

Drowota and concurred in by Judge Daughtrey, does not

—

display any deep-seated antagonism toward Dillon.

Counsel’s argument lacks merit.

The petition for rehearing is denied.

ENTERED BY ORDER OF

THE COURT

/s/ Leonard Green

Clerk

10A

IN THE CRIMINAL COURT, DIVISION II

FOR KNOX COUNTY, TENNESSEE

STATE OF TENNESSEE

VS.

THOMAS DILLON

Defendant

)

) No. 37597

)

ORDER

The detendant has filed a Motion under Tennessee

Code Annotated 40-31-101, Article IV (c) that the indict-

ment be dismissed for failure of the State to cause the

trial to be commenced within 120 days of the arrival of

the prisoner in the receiving state. The State insists that

this period was properly tolled by the Stay Order

entered. The defendant counters that_this Order was not

entered in compliance with the Interstate Compact in that

it was not entered in open Court, the prisoner or his

counsel being present.

The Court has reviewed the applicable statutes, the

case law and the testimony as well as the entire file and

finds as follows:

1. The Stay Order was not entered for good cause in

open Court in compliance with the Interstate Compact for

Detainers.

2. The Order failed to toll the running of the 120

day period.

7 Therefore, the indictment is DISMISSED with preju-

dice and the defendant ordered returned to Federal cus-

tody.

Bas eis is —E Se a SS ee

11A

The Clerk will forward copies of this Order to the

defendant, the attorney for the defendant, the District

Attorney General and the State Attorney General and

Reporter.

Enter this 17th day of May, 1991.

/s/ Ray L. Jenkins

RAY L. JENKINS, JUDGE

SIXTH JUDICIAL CIRCUIT

DIVISION II

CERTIFIED TRUE COPY

MARTHA PHILLIPS, CLERK

CRIMINAL COURT

KNOX COUNTY, TN

By /s/ Jewel Davis

DEPUTY CLERK

12A

[LOGO] U.S. Department of Justice

Eederal Bureau of Investigation

Washington, D. C. 20535

DEC 10 1992

Robert E. Wilson, Esq.

Wilson and Kochheiser Company, LPA

132 South Main Street

Marion, Ohio 43302

Re: Thomas Jerome Dillon

FOIPA No. 341,713 190-34865

Dear Mr. Wilson:

This is in reference to my letters dated October 31,

1991, and June 10, 1992, concerning your Freedom of

Information-Privacy Act requested on behalf of your cli-

ent, Thomas Jerome Dillon.

You were advised that your request to the Tampa

Office of the FBI was being handled separately. The

Tampa file concerning the RICO - Murder investigation

was reviewed for documents which were not reported to

the primary investigative office or to Headquarters. The

file contained one page in addition to material processed

and released to you by letter dated October 31, 1991.

However, that page is being withheld pursuant to Title 5,

United States Code, Section 552, subsections (b)(7)(C) and

(b)(7)(D) and Section 552a, subsection (j)(2), an explana-

tion of which is enclosed.

A search of the indices in the Tampa Office also

revealed a file which corresponded to the Narcotics file

released with my letter of June 10, 1992. Efforts by per-

sonnel of the Tampa Office to retrieve that file, however,

13A

were unsuccessful because the file was inadvertently

destroyed.

Cincinnati was the office of primary responsibility in

both of the above investigations. Since you have received

the files maintained by the Cincinnati Office, you may be

assured that you have received the substantive informa-

tion docuraented by this agency. Experience has shown

that additional information or documents is minimal in

offices other than the primary investigative office and FBI

Headquarters. As you were previously advised, files

maintained by Headquariers concerning these matters are

duplicative of those maintained by Cincinnati. Therefore,

the processing of your client’s request is now completed.

If you desire, you may appeal any denials contained

herein. Appeals should be directed in writing to the

Assistant Attorney General, Office of Legal Policy (Atten-

tion: Office of Information and Privacy), United States

Department of Justice, Washington, D. C. 20530, within

thirty days from receipt of this letter. The envelope and

the letter should be clearly marked “Freedom of Informa-

tion Appeal” or “Information Appeal.” Please cite the

FOIPA number assigned to your request so that it may be

easily identified.

Sincerely yours,

/s/ J. Kevin O’Brien/BSO

J. Kevin O’Brien, Chief

Freedom of Information -

Privacy Acts Section

Information Management

Division

Enclosure

14A

EXPLANATION OF EXEMPTIONS

SUBSECTIONS OF TITLE 5, UNITED STATES

CODE, SECTION 552

(b)(1)

(b)(2)

(b)(3)

(b)(4)

(b)(5)

(b)(6)

(b)(7)

(A) specifically authorized under criteria estab-

lished by an Executive order to be kept secret in

the interest of national defense or foreign policy

and (B) are in fact properly classified pursuant to

such Executive order;

related solely to the internal personnel rules and

practices of an agency;

specifically exempted from disclosure by statute

(other than section 552b of this title), provided

that such statute (A) requires that the matters be

withheld from the public in such a manner as to

leave no discretion on the issue, or (B) establishes

particular criteria for withholding or refers to par-

ticular types of matters to be withheld;

trade secrets and commercial or financial informa-

tion obtained from a person and privileged or

confidential;

inter-agency or intra-agency memorandums or

letters which would not be available by law to a

party other than an agency in litigation with the

agency;

personnel and medical files and similar files the

disclosure of which would constitute a clearly

unwarranted invasion of personal privacy;

records or information compiled for law enforce-

ment purposes, but only to the extent that the

production of such law enforcement records or

information (A) could reasonably be expected to

interfere with enforcement proceedings, (B)

would deprive a person of a right to a fair trial or

i hie .

Steele Oke Let ale i ar aia

-2

(b)(8)

(b)(9)

15A

an impartial adjudication, (C) could reasonably be

expected to constitute an unwarranted invasion of

personal privacy, (D) could reasonably be

expected to disclose the identity of a confidential

source, including a State, local, or foreign agency

or authority or any private institution which fur-

nished information on a confidential basis, and, in

the case of a record or information compiled by a

criminal law enforcement authority in the course

of a criminal investigation, or by an agency con-

ducting a lawful national security intelligence

investigation, information furnished by a confi-

dential source, (E) would disclose techniques and

procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk

circumvention of the law, or (F) could reasonably

be expected to endanger the life of physical safety

of any individual;

contained in or related to examination, operating,

or condition reports prepared by, on behalf of, or

for the use of an agency responsible for the regu-

lation or supervision of financial institutions; or

geological and geophysical information and data,

including maps, concerning wells.

SUBSECTIONS OF TITLE 5, UNITED STATES

CODE, SECTION 552a

(d)(5)

(j)(2)

information compiled in reasonable anticipation

of a civil action proceeding;

material reporting investigative efforts pertaining

to the enforcement of criminal law including

efforts to prevent, control, or reduce crime or

apprehend criminals, except records of arrest;

(k)(1)

(k)(2)

(k)(3)

(k)(4)

(k)(5)

(k)(6)

(k)(7)

e 16A

information which is currently and properly clas-

sified pursuant to Executive Order 12356 in the

interest of the national defense or foreign policy,

for example, information involving intelligence

sources or methods;

investigatory material compiled for law enforce-

ment purposes, other than criminal, which did

not result in loss of a right, benefit or privilege

under Federal programs, or which would identify

a source who furnished information pursuant to a

promise that his/her identity would be held in

confidence;

material maintained in connection with providing

protective services to the President of the United

States or any other individual pursuant to the

authority of Title 18, United States Code, Section

3056;

required by statute to be maintained and used

solely as statistical records;

investigatory material compiled solely for the

purpose of determining suitability eligibility, or

qualifications for Federal civilian employment or

for access to classified information, the disclosure

of which would reveal the identity of the person

who furnished information pursuant to a promise

that his identity would be held in confidence;

testing or examination material used to determine

individual qualifications for appointment or pro-

motion in Federal Government service the release

of which would compromise the testing or exam-

ination process;

material used to determine potential for promo-

tion in the armed services, the disclosure of which

17A

would reveal the identity of the person who fur-

nished the material pursuant to a promise that his

identity would be held in confidence.

18A

IN THE CRIMINAL COURT OF

TENNESSEE AT KNOXVILLE

THE SIXTH JUDICIAL DISTRICT

STATE OF TENNESSEE )

)

i ) CASE NO. 37597

THOMAS DILLON, )

ALIAS

TRANSCRIPT

THE HONORABLE RAY L. JENKINS,

PRESIDING JUDGE

APPEARANCES

FOR THE STATE:

ROBERT JOLLEY

Assistant District Attorney General

Knox County District Attorney General’s Office

City-County Building

Knoxville, Tennessee 37902

FOR THE DEFENDANT:

DOUGLAS A. TRANT

Attorney at Law

Andrew Johnson Plaza

912 S. Gay Street

Suite 1500

Knoxville, Tennessee 37902

19A

TABLE OF CONTENTS

Page

Motion to Dismiss Indictment by Mr. Trant........ 1

STATE’S PROOF:

SHEILA MELTABARGER:

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[p. 1] IN THE CRIMINAL COURT OF

KNOX COUNTY, TENNESSEE

DIVISION II

STATE OF TENNESSEE __ )

VS.

: ) CASE NO. 37597

THOMAS DILLON, )

ALIAS )

(This cause came on to be heard and was heard on

the 2nd day of May, 1991, before the Honorable Ray L.

Jenkins, Judge, holding the Criminal Court for Knox

County, at Knoxville, Tennessee, when the following pro-

ceedings were had:)

20A

MR. TRANT: May it please the Court, we’re

here today on a motion to dismiss the indictment and

return the defendant to federal custody.

Of course, the Court, I’m sure, has had an oppor-

tunity to review the motion, but, essentially, what it states

is that the defendant was returned - or was sent to

Tennessee and brought into custody here on December

11th of last year pursuant to a detainer placed under the

Interstate Compact on Detainers, TCA 40-31-101 et. seq.

That his first trial date, of course, was set on Febru-

ary 11th, 1991, and continued at the request of the State of

Tennessee until April lst of ‘91. We had before that

demanded a speedy trial, as the Court may remember,

vigorously objected to the continuance in that — on that

[p. 2] date.

Further, after that, the defendant continued to

demand his right to a speedy trial, has never moved for

any continuance in this cause and never has agreed to

any continuance of this cause.

That on March 6, 1991, at the request of the State of

Tennessee, this case — the trial of this case was stayed

pending interlocutory appeal by the State of Tennessee to

the Court of Criminal Appeals on the defendant’s suc-

cessful motion to suppress a search.

Your Honor please, we contend further that no hear-

ing in open court was ever held on the State’s motion to

stay the proceedings. Certainly the statutes requires, and

the language is rather clear in Article IV(c), that the trial

shall be commenced within 120 days of the arrival of the

prisoner in the receiving state, but for good cause shown

21A

in open court, the prisoner or his counsel being present,

the court having jurisdiction of the matter may grant any

necessary or reasonable continuance.

Clearly we are outside the 120 days from December

11th. No question about that. And clearly there is no

proceeding in open court on which the continuance was

granted or the stay ordered.

We had previously filed, and I would ask the Court

to take notice, the arrest warrant in this cause showing [p.

3] that it was executed on December 11th and would ask

the Court to take notice of its own records indicating the

dates that I have previously stated.

Initially, your Honor, we would submit to the Court -

if | may approach the bench? -

THE COURT: Yes. Thank you.

MR. TRANT: -a case by the name of Stroble vs.

Anderson. This is a Sixth Circuit case arising out of the

District Court in Michigan wherein the Court hela at

several times — and I would direct the Court primarily to

page 839, headnote three, which says that “the district

judge correctly recognized the term ‘open court’ meant

with a judge on the bench.”

This case repeatedly refers to that, that — and there

were continuances granted in the Stroble case where there

was no hearing in open court with a judge on the bench.

And the Sixth Circuit, Judge Edwards, chief judge found

that that was a violation of the compact on detainers and

that the case should therefore be_dismissed with preju-

dice, since that is the only remedy allowed for under the

compact.

22A

Further, a discussion in that case, which I think is

important, is that the defendant is not required to show

any prejudice whatsoever under the compact.

The terms of the compact are strict, are [p. 4] manda-

tory. And, of course, the reason for them is that for so

many years, as the Court knows, we had problems with

one state placing a detainer on a prisoner in another state

or in federal jurisdiction, and it caused them all kinds of

difficulties. A detainer placed on a prisoner has an effect

on his security status, his parole status, his rehabilitation

status, and that’s why the congress of the United States

and the State of Tennessee, as well as the other states in

the nation have entered into this compact.

This is a procedural argument that we’re making, but

a very important procedural argument.

I would also note that, unlike in Stroble where there

were two states involved, in this case we have a federal

prisoner who is received into custody in the courts of

Tennessee, making Stroble even more important authority,

since it is a Sixth Circuit case.

Judge Edwards quotes Justice Felix Frankfurter in

this case and says that “the history of American freedom

is in no small measure the history of procedure.”

And the procedure is important in this matter,

because it — the legislative purpose of it is to give the

defendant an opportunity to be heard on any motion for a

continuance and to have a record subject to review. And

certainly that wasn’t the case in this case. There is no

record at all of the State’s motion. The only record that [p.

5] we have is the order, of course, signed by the Court,

Se OFA LANL NO et gn OL iF 8

ate

Fe Nik a at Maho S sie TD

oo oe ie ee ee ee

23A

which I assume was brought to the Court by the State. I

can — I think I can tell by the printing on the stay order

that it was submitted to the Court by the State. No

question about that.

I would further note, if you look through Stroble, that

repeatedly it talks about the importance — the mandatory

nature of the language of the act. Of course, the act is the

same for all parties, so we’re not talking about any lan-

guage. And it repeatedly says that these actions must be

taken in open court, and, if not, the court shall enter an

order dismissing the same indictment with prejudice.

Your Honor please, I would also cite to the Court a

case that’s talked about a good bit in Stroble, and that’s

the United States Supreme Court case - and I have a copy,

if I may approach the bench? — United States vs. John

Mauro and John Fusco.

THE COURT: All right.

MR. TRANT: Your Honor, that was a seven-two

decision of the United States Supreme Court, and it’s still

good law.

And in that case, the United States Supreme Court

talks throughout the opinion about the mandatory nature

of the compact and that how Article IV(c), which is what

we're talking about, says that if you don’t try a prisoner

within [p. 6] 120 days, the case is to be dismissed, the

indictment, with prejudice.

Justice White, in writing that opinion, talks about the

very important procedures in this case and how they

shall be followed and shall be followed in a mandatory

fashion.

24A

I would also cite to the Court, your Honor please — if

I may approach the bench? - as persuasive authority in

this cause another United States Court of Appeals case,

this time from the Second Circuit, and that is United States

vs. Ford.

If I could direct the Court to page 743 of that opinion,

specifically headnote fifteen, it says: “Not only were there

delays unjustified, but two of the three were not granted

in ‘open court, the defendant or his counsel being pre-

sent.’ ” And they go on to dismiss that indictment saying

that the compact was not followed, that the formal

requirements of the compact were not followed. And that

indictment was dismissed in the Ford case.

If I may approach the bench again, your Honor

please?

THE COURT: Yes.

MR. TRANT: I would also cite as persuasive

authority in this case the case of Johnson vs. Stagner,

United States Court of Appeals case in the Ninth Circuit,

[p. 7] and would direct the Court’s attention to page 763

of that opinion, specifically at headnote five.

And the second sentence says: “We cannot tell

whether the continuance was granted following a pro-

ceeding in open court or, if so, whether Johnson or his

counsel were attending the proceeding.” Then it says:

“These statutory requirements cannot be ignored.” It then

goes on to cite Ford, which I’ve given the Court; Mauro,

which I’ve given the Court; and Stroble, which I’ve given

to the Court, again, stressing the mandatory nature of the

proceedings and the requirements under the detainer.

25A

Your Honor please, I would next cite as —- as some-

what relevant, I think - I’ve tried to look for other places

in our laws in Tennessee where the phrase “open court”

is used, and certainly there is one statute where that is

employed. I have a copy of it, if I may approach the

bench?

THE COURT: Yes.

MR. TRANT: If the Court please, that’s the stat-

ute beginning at TCA 40-14-301 et. seq. which requires

that every word spoken in open court must be taken

verbatim by a court reporter, and directs the Court, of

course, to instruct the court reporter to do so.

If I could, TCA 40-14-307, it says: “A designated

reporter shall attend every stage of each criminal case [p.

8] before the Court and shall record verbatim by a

method prescribed or approved by the Executive Secre-

tary all proceedings had in open court and such other

proceedings as the judge may direct.” —

Well, of course, we have no verbatim taken by the

court reporter of any matter preceding this stay, because

it wasn’t in open court. And I know this Court doesn’t

hold anything in open court without that court reporter

there taking it down, following that statute, further show-

ing that it wasn’t in open court.

Lastly, as far as authority, your Honor please - if I

may approach the bench?

THE COURT: Yes.

MR. TRANT: And this is an interpretation of

that statute I just talked about, talking about open court,

and that’s the case from our own Court of Criminal

26A

Appeals, cert denied by the Supreme Court, of Layman vs.

State.

And I would direct the Court to page 3033 of that

opinion at headnote eight, and it says that “we call atten-

tion to TCA 40-2035, our predecessor to the new statute,

providing that the reporter shall record verbatim all pro-

ceedings had in open court.” And they say that’s true

even if you hire your own court reporter.

“The need for a record of what occurs during sen-

tencing” — this was a sentencing case - “is evident. [p. 9]

Properly conducting the proceeding in the first place,

plus an accurate record to prove it, is by far the best

defense against collateral impeachment.”

As our own Court of Criminal Appeals has recog-

nized, that if you’re going to have a matter in open court,

that the court reporter shall take down what is — what is

stated.

Essentially, your Honor please - again, the history of

the detainer compact is clear. That if a state is going to

demand that they try somebody, that they’re going to

have to follow very strict procedures. And that if they

don’t follow the procedures, then the case is to be dis-

missed with prejudice; the reason for that being that

we're just not going to leave people lying around on

detainers or bring them up to a state and leave them

lying around, but that we’re going to follow the compact

as it’s written. And the courts have been very strict in

interpreting it for that reason.

In every case before your Honor where an individual

has had a case continued beyond 120 days, as is the case

ms ee

tae etl MEI A gE OE AI IIN CPM IRC CE Me

sical seieseenstn sete antes inne antiinsitenete eee

27A

in the instant cause, if it hasn’t strictly followed the

procedure, then that case is to be dismissed.

In Stroble they didn’t follow the procedure in open

court. I might also mention that cert was applied for in

that case with the United States Supreme Court and was

[p. 10] denied.

But that’s exactly the same kind of situation we have

here. The judge - you did enter a stay — and I’m not

insinuating in any way that the Court did anything

wrong. It’s up to the State of Tennessee to make sure they

follow the procedure. The Court did what was before it,

and the Court has remained entirely neutral throughout

this case.

But the State of Tennessee - it’s incumbent upon

them — and Strobe and Mauro talks about that. Justice

White in Mauro talks about that. That it’s incumbent upon

the prosecutors to make sure they follow the procedure;

and if they don’t, if they don’t follow any part of it, then

the case is to be dismissed. The reason for that is to make

sure that the procedure is followed. That’s the reason that

the remedies are that severe, and to make sure the pris-

oner is not unduly detained by the detainer action or by

any action taken by the receiving state, and that’s exactly

what’s happened in this cause.

We have demanded a speedy trial throughout the

proceedings, have never agreed to any continuance.

Of course, I knew the State was attempting to obtain

a stay, and I told them, and I told your Honor I think, that

if | were them, I - I don’t blame them. I would too, under

the circumstances. But then it was incumbent upon them

28A

to make sure that they obtained it, if they could, [p. 11]

following the exact procedures set out in the compact.

That’s what they didn’t do, and for those reasons, we

would ask the Court to dismiss this indictment as set out

in the act and to order the defendant to be returned to

federal custody.

THE COURT: General? -

MR. JOLLEY: Your Honor, we would call Mrs.

Meltabarger as a witness.

THE COURT: Pardon?

MR. JOLLEY: Mrs. Meltabarger.

STATE’S PROOF

SHEILA MELTABARGER was called and, being duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. JOLLEY:

Q Would you state your name, please.

A Sheila Meltabarger.

Q And who do you work for and in what capacity?

A I work for the Criminal Court Clerk’s Office. I’m

the minute clerk for Division II.

Q Okay. And were you present in the courtroom

and operating in that capacity on April the 1st of 1991?

A_ I was.

29A

Q Okay. And on that date, was the case that we are

presently before the Court on, State of Tennessee vs.

Thomas [p. 12] J. Dillon, set for trial?

A It was.

Q Okay. And was it on the Court’s docket on that

day?

A It was.

Q Did Mr. Trant show up in court on that day in

open court?

A Not on that case he didn’t.

Q Was a representative of the Attorney General’s

Office present in court?

A There is always someone here.

Q And on that date, did Judge Jenkins reaffirm that

a stay had been issued on March the 6th of those proceed-

ings?

A Yes, he did.

Q And that case was taken off of the docket on that

day?

A Yes.

MR. JOLLEY: That would be all the questions

we have of the witness.

THE COURT: Cross-examine?

30A

CROSS-EXAMINATION

BY MR. TRANT:

Q The case that was set for trial on April 1st was

Kenneth Bowles; was that — is that correct?

[p. 13] A Thomas Dillon was also set for trial.

Q Okay. Well, I - I know that, Sheila, but -

A Uh-huh.

Q - okay. The Dillon case had already been stayed,

had it not?

A The order had already been put down, but it was

still set for trial on that day.

Q Well, it — it had already been stayed pending

action by the Court of Criminal Appeals in March. Is that

what the Court’s order reflects?

A Right.

Q And, of course, you’re not saying that — that any

discussion of the Dillon case in this courtroom was made

in my presence, are you?

A Ido not know if you were here or not. When all

of the cases had been taken care of except for the Dillon

case, I asked the judge, I said, Well, I assume this is to go

in unset cases now, and he said yes.

Q Okay. But you’re not saying I was present?

A Oh, no.

Q And certainly you’re not saying Mr. Dillon was

present?

31A

A No.

Q_ Thank you.

MR. JOLLEY: That’s all the questions we have

of [p. 14] this witness, your Honor.

THE COURT: All right, all right.

(WITNESS EXCUSED)

* * *

MR. JOLLEY: Your Honor, the argument that

Mr. Trant makes is that the Court has to specifically

address all matters on continuance in open court. That is

not what the statute says. The statute says for good cause

shown in open court, the Court may grant a continuance.

In this case, the Court had an extensive hearing on

February the 11th and the Court determined on that date

that the evidence that the State had in this matter should

be suppressed. The Court granted an appeal on that

particular matter.

Your Honor, that was the good cause shown in open

court in front of Mr. Dillon, in front of Mr. Trant.

As a result of that, the Court entered its order on

March the 6th stating that good cause had been shown

under the statute.

Furthermore, this case was again on the Court’s

docket in open court on April the Ist, at which time the

Court reaffirmed the order. Now, the fact that Mr. Trant

didn’t choose to appear on that day can’t be held against

the State of Tennessee.

32A

Mr. Trant cannot rely on a motion on March the [p.

15] 6th and then hold it against the State of Tennessee

later on and say, Well, the State of Tennessee didn’t

comply with any hypertechnicalities.

Secondly, your Honor, we would refer the Court to

the statute, 40-31-101, Section 6, part (A). That statute

states: “In determining the duration and expiration dates

of the time periods provided in Article III and Article IV

of this agreement, the running of such time period shall

be tolled whenever and for as long as the prisoner is

unable to stand trial as determined by the court having

jurisdiction of this matter.”

The Court, based on its findings in open court on

February the 11th of this year, made the determination

that an appeal should be granted, that a stay should be

granted, that a continuance was in order. That good cause

had been shown in open court. And under that statement

and under Article VI, Section (A), the time period is

tolled.

Your Honor, we would ask the Court to dismiss the

motion by Mr. Trant.

THE COURT: Let me ask this, General. Is a stay

a continuance within the meaning of this statute?

MR. JOLLEY: Your Honor, the order of the

Court on March the 6th states the following: “It is the

further opinion that good cause has been shown for

granting a reasonable and necessary continuance until

such time as a [p. 16] determination has been made on the

appeal.”

{

Cane Fo

33A

Now, the appeal is the basis for all of this. The appeal

was granted because of the Court’s ruling on Mr. Trant’s

motion. Yes, sir. All of this stuff — basically, the Court said

that based upon the granting of the appeal in this matter,

that it is ordered that the time limitations set forth in the

statute are stayed and suspended and this case continued

pending a determination by the appellate courts.

THE COURT: Yes, sir.

MR. TRANT: May it please the Court, first of

all, as to the February 11th date, there was no motion for

a stay made by Mr. Jolley in open court that day, and

certainly none granted in open court. So, that’s com-

pletely irrelevant.

As to the April 1st date, there was no need for me to

be here, of course, because the case had been stayed. And

it’s not incumbent upon me to make sure Mr. Jolley

comes into court and follows the requirements of the

statute. Those are his requirements, not mine. And he

certainly can’t place the burden on me; the burden is on

Mr. Jolley to make sure that all the procedures are fol-

lowed.

As to his argument under VI(A), your Honor please,

that same argument came up in Stroble, and I would

direct the Court’s attention to page 838 of that opinion,

the last [p. 17] full paragraph and the discussion preced-

ing it.

And what Judge Edwards says in that case is that the

State cannot rely upon a defendant being unable to stand

trial because of the State’s own actions. Unable to stand

trial means that the defendant is physically or mentally

34A

unable to stand trial or that he’s not in the jurisdiction. If

you look at these cases, that’s what each of them holds.

And Judge Edwards goes on to say: “We believe that

Article VI was written as a protective measure for a

transferred prisoner. It cannot appropriately be turned

from a shield for the defendant into a sword for the

prosecution.”

Exactly what Mr. Jolley is trying to do is turn this

into a sword for the prosecution instead of a shield for

the defendant.

The compact was written to act as a shield for unnec-

essary delays, unnecessary detainers, and that’s exactly

the purpose behind it, if your Honor please.

And, quite simply, again, they’ve not followed the

requirements of the compact. There is no question today

that there is no record of any proceeding where the State

has moved in open court for a continuance or a stay of

this cause nor has one been granted in open court, and

for that reason, we ask that this case, again, be dismissed.

THE COURT: All right. I’ll take this under [p.

18] advisement and given you a written opinion.

MR. TRANT: Thank you, your Honor.

(END OF REQUESTED TRANSCRIPT)

35A

[p. 19] CERTIFICATE

I, the undersigned, Linda M. Miller, Official Court

Reporter for the Sixth Judicial District of the State of

Tennessee, do hereby certify that the foregoing is a true,

accurate, and complete transcript, to the best of my

knowledge and ability, of all the proceedings had and

evidence introduced in the hearing of the captioned cause

in the Criminal Court for Knox County, Tennessee, on the

2nd day of May, 1991.

I do further certify that 1 am neither of kin, counsel,

nor interest to any party hereto.

May 9th, 1991

/s/ Linda M. Miller

Official Court Reporter

State of Tennessee

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.