Petition for Writ of Certiorari — Cross v. Cunningham
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Supreme Court, U.S.
its Dv
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No 94 880 OCT 2 6 1994
OEFICE OF THE
In the
Supreme Court of the United States
OCTOBER TERM, 1994
WAYNE F. CROSS,
PETITIONER,
MICHAEL CUNNINGHAM, WARDEN
THE NEW HAMPSHIRE STATE PRISON,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI
TO THE NEW HAMPSHIRE SUPREME COURT
MARK P. SZPAK
Counsel of Record
JOHN R. BARANIAK, JR.
DAVID R. SUNY
ROPES & GRAY
One International Place
Boston, MA 02110
(617) 951-7000
Counsel for Petitioner
a ee RNIN
QUESTION PRESENTED
The Interstate Agreement on Detainers requires a receiving state to
return a prisoner to his program of rehabilitation in the sending state "at the
earliest practicable time" following prosecution of the untried indictment so
as to minimize disruption of the prisoner's rehabilitation program in the
sending state. Does this interstate compact permit the receiving state to refuse
to comply with that mandate solely because the prisoner has appealed his
conviction?
TABLE OF CONTENTS
Page
Ter ie ee 2
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REASONS FOR GRANTING THE WRIT ....................2.5.- 8
L THE NEW HAMPSHIRE SUPREME COURT'S
CONSTRUCTION OF THE IAD CONFLICTS WITH
DECISIONS OF OTHER STATE COURTS OF LAST
RESORT CONSIDERING WHEN A PRISONER IS TO BE
RETURNED TO THE SENDING JURISDICTION ........... 9
Il. THE NEW HAMPSHIRE SUPREME COURT'S
CONSTRUCTION OF THE IAD RAISES AN
IMPORTANT QUESTION OF FEDERAL LAW THAT
SHOULD BE DECIDED BY THIS COURT ................
A. THE DECISION BELOW EVISCERATES ONE
OF THE IAD'S STATUTORY PURPOSES BY
ALLOWING PRISON AUTHORITIES TO
UNNECESSARILY PROLONG DISRUPTIONS IN
A PRISONER'S REHABILITATION PROGRAMS
IN THE SENDING JURISDICTION ...............
CONCLUSION
THE NEW HAMPSHIRE SUPREME COURT'S
DECISION ENGRAFTS A NEW PROCEDURAL
REQUIREMENT ONTO THE IAD THAT
NEEDLESSLY BURDENS PRISONERS AND
PRISON AUTHORITIES ALIKE ..................
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TABLE OF AUTHORITIES
Page(s)
Cases
Carchman v. Nash,
I I i ce ur a ee 8,10
Cuyler v. Adams,
Ro oad ili eceinabwionee ae seueu ews 8,10
Davis v. Virginian Ry. Co.,
ee ee Es okie ck sc eocecads Mae elekeicheassee 9
Hearn v. State,
ee ee Fe ID SED oko vb vdeo Volek beh JAA ob a ews ll
Joubert v. McKernan,
Fee ee OO ids Caiees Ae Seah swh kee he dearees 11
Metheny v. Hamby,
WIPE cai eas < coke Ohh ohn one bie Reece 9
Moody v. Corsentino,
er ee eR I ob 5 xt wach Sy ew ekc es voce ecnsues 14
Neville v. Friedman,
367 N.E.2d 1341 (Ill. 1977),
my gi RG i ee ee 14
Reedy. Farley, US.__,
SOO ee GE Be rb he ce ke hebice see nikvansnase 8, 10
Shanks v. Commonwealth,
574 S.W.2d 688 (Ky. Ct. App. 1978) .....
State v. Burrus,
729 P.2d 926 (Ariz. Ct. App.)
modified on other grounds,
749 © Aen Dad CAME, TBOG) ooo ccc eee cnss
State v. Grizzell,
399 So.2d 1091 (Fla. Dist. Ct. App. 1981)
State v. Jefferson,
574 A.2d 918 (Md. Ct. Avp. 1990) .......
Turnbow v. Comm'r. of Internal Revenue,
| ee ere eee
United States v. Chico,
558 F.2d 1047 (2d Cir. 1977),
cert. denied, 436 U.S. 947 (1978) ........
United States v. Coffman,
905 F.2d 330 (10th Cir. 1990) ...........
United States v. Daniels,
PP Ae COG, FD occ ccccccvesss
United States v. Evans,
423 F. Supp. 528 (S.D.N.Y. 1976) .......
United States v. Mauro,
SORE. POP UCNMOEE sce actccanvcndsecss
United States v. Robinson,
eee errr rer
Walker v. King,
Cnt. ME. FEC Gs. A ase AR Aa 13
Wilkett v. State,
faa 0.26 Ses (Oe. Coie, Age. 1968) onc oon ccc ceecceesees 17
Statutes and Regulations
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In the
Supreme Court of the United States
No. -
OCTOBER TERM, 1994
WAINE F. CROSS,
PETITIONER,
v.
MICHAEL CUNNINGHAM, WARDEN
THE NEW HAMPSHIRE STATE PRISON,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI
TO THE NEW HAMPSHIRE SUPREME COURT
TO THE HONORABLE, THE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT
OF THE UNITED STATES:
Petitioner Wayne F. Cross respectfully prays that a writ of certiorari
issue to review the judgment and opinion of the New Hampshire Supreme
Court, entered in the above-entitled case on June 27, 1994 (motion for
rehearing denied on July 28, 1994).
2
OPINION BELOW
The New Hampshire Supreme Court's decision (Brock, C.J.) is
reported at__ N.H.__ and 644 A.2d 542 and is reprinted in the Appendix
hereto ("App."), pp. A-1 to A-6.
JURISDICTION
Petitioner commenced this action in New Hampshire state court by
filing in Hillsborough County Superior Court a Petition for Writ of Habeas
Corpus and for Declaratory Judgment and Injunctive Relief pursuant to N.H.
Rev. Stat. Ann. §§ 491:22 and 498:1-2. On defendant's motion, that court
subsequently dismissed the petition. Petitioner then directly appealed that
ruling to the New Hampshire Supreme Court. On June 27, 1994, the New
Hampshire Supreme Court affirmed the dismissal. See App., pp. A-1 to A-9.
Petitioner's motion for rehearing was denied by the New Hampshire Supreme
Court on July 28, 1994. See App., p. A-?9.
This Court has jurisdiction to review the judgment of the New
Hampshire Supreme Court pursuant to 28 U.S.C. § 1257(a).
STATUTES INVOLVED
The Interstate Agreement on Detainers is codified at 18 U.S.C. App.
§ 2.
N.H. Rev. Stat. Ann. § 606-A, New Hampshire's enactment of the
Interstate Agreement on Detainers, provides in material part:
606-A: 1 Agreement Enacted. The agreement on detainers is
hereby enacted into law and entered into by this state with all
other jurisdictions legally joining therein in the form
substantially as follows: The contracting states solemnly agree
that:
Article I
The party states find that charges outstanding against a
prisoner, detainers based on untried indictments, informations or
complaints, and difficulties in securing speedy trial of persons
already incarcerated in other jurisdictions, produce uncertainties
ee ee ee ee
3
which obstruct programs of prisoner treatment and
rehabilitation. Accordingly, it is the policy of the party states
and the purpose of this agreement to encourage the expeditious
and orderly disposition of such charges and determination of the
proper status of any and all detainers based on untried
indictments, informations or complaints. The party states also
find that proceedings with reference to such charges and
detainers, when emanating from another jurisdiction, cannot
properly be had in the absence of cooperative procedures. It is
the further purpose of this agreement to provide such cooperative
procedures.
Article III
(a) Whenever a person has entered upen a term of
imprisonment in a penal or correctional institution of a party
State, and whenever during the continuance of the term of
imprisonment there is pending in any other party state any
untried indictment, information or complaint on the basis of
which a detainer has been lodged against the prisoner, he shall
be brought to trial within 180 days after he shall have caused to
be delivered to the prosecuting officer and the appropriate court
of the prosecuting officer's jurisdiction written notice of the place
of his imprisonment and his request for a final disposition to be
made of the indictment, information or complaint... .
Article IV
(a) The appropriate officer of the jurisdiction in which an
untried indictment, information or complaint is pending shall be
entitled to have a prisoner against whom he has lodged a
detainer and who is serving a term of imprisonment in any party
state made available in accordance with Article V(a) hereof upon
prescntation of a written request for temporary custody or
availability to the appropriate authorities of the state in which
the prisoner is incarcerated... .
4
(c) In respect to any proceeding made possible by this
Article, trial shall be commenced within 120 days of the arrival
of the prisoner in the receiving state... .
Article V
(ad) The temporary custody referred to in this agreement
shall be only for the purpose of permitting prosecution on the
charge or charges contained in one or more untried indictments,
informations or complaints which form the basis of the detainer
or detainers or for prosecution on any other charge or charges
arising out of the same transaction... .
(e) At the earliest practicable time consonant with the
purposes of this agreement, the prisoner shall be returned to the
a iii
sending State.
Article IX
This agreement shall be liberally construed so as to effectuate its
purposes ....
606-A:5 Duty of Warden. It shall be lawful and mandatory
_upon the warden or other official in charge of a penal or
correctional institution in this state to give over the person of any
inmate thereof whenever so required by the operation of the
agreement on detainers.
STATEMENT OF THE CASE
This case arises from the conduct of New Hampshire prison authorities
in contravention of the Interstate Agreement on Detainers ("IAD"). In
substance, New Hampshire prison authorities penalized petitioner Wayne F.
Cross by depriving him of rights and protections otherwise afforded him
under the LAD. They did so solely because he exercised his right to appeal his
underlying conviction. Mr. Cross accordingly sought relief (including the
vacation of his convictions and sentences pursuant to the remedial provisions
5
of the IAD) by a writ of habeas corpus under New Hampshire law and by a
claim under 12 U.S.C. § 1983. See App., pp. A-14 to A-28.
Background
The principal purpose of the IAD is to minimize disruption to a
prisoner's program of rehabilitation in prison by ensuring that trials on
criminal charges against the prisoner in another jurisdiction are swiftly
commenced and that, after the trial is over, the prisoner is then promptly
returned to continue his program of rehabilitation. See infra 2-4.
While serving a sentence as a prisoner in the Massachusetts prison
system in 1983, Mr. Cross engaged in both a drug/alcohol abuse
rehabilitation program and a vocational education rehabilitation program. His
continuing participation in the vocational education program, in particular,
was geared toward allowing him to earn the work-credit hours needed to
obtain his journeyman's electrician's license so that he would have a trade
when he completed his time in prison. See App., p. A-16.
During this time, Mr. Cross learned that the State of New Hampshire
had indicted him for his alleged involvement in two bank robberies. Mr.
Cross invoked his rights under the IAD and requested transfer to New
Hampshire for disposition of the pending indictments. New Hampshire, in
turn, assumed custody of Mr. Cross for this purpose, expressly under the
terms and conditions of the IAD. See App., pp. A-16 to A-17.
After a year of pretrial and trial delays in the New Hampshire
proceedings, Mr. Cross was convicted on December 5, 1984 on two counts
of bank robbery. Shortly thereafter, the New Hampshire court sentenced him
to two consecutive 72-15 year sentences at the New Hampshire State Prison.
See App., pp. A-17 to A-18.
Mr. Cross then appealed his convictions to the New Hampshire
Supreme Court. At the same time, he requested to be retumed to prison in
Massachusetts to continue serving his Massachusetts sentence and to resume
his rehabilitation programs, as provided by the IAD. Notably, the New
Hampshire State Prison did not offer the types of vocational training
programs in the electrical trade in which Mr. Cross had participated while
incarcerated in Massachusetts. See App., p. A-18.
6
The New Hampshire prison authorities refused to return Mr. Cross to
Massachusetts, citing as the only reason for their refusal Mr. Cross's appeal
of his convictions. The authorities expressed the purported concern that if
they were to return Mr. Cross to Massachusetts during the pendency of his
appeal, then Mr. Cross might be able to invoke the anti-shuttling provisions
of the LAD to avoid a new trial should the New Hampshire Supreme Court
overturn his convictions. They claimed to doubt whether the LAD extradition
waiver that Mr. Cross had previously given to effect his initial transfer to New
Hampshire for trial was sufficient to secure his presence in New Hampshire
for a retrial if necessary.’ See App., pp. A-18 to A-20.
Mr. Cross consistently maintained that the New Hampshire authorities
had no discretion to continue to hold him in New Hampshire pending his
appeal, and that the IAD required that he be returned to Massachusetts
directly after sentencing. Mr. Cross also maintained that the initial waiver he
had given was fully adequate to secure his return in the event of a retrial. As
the refusal by New Hampshire authorities dragged on, Mr. Cross nonetheless
eventually offered to give the New Hampshire authorities whatever additional
waivers they wanted (although maintaining that none were necessary).
Despite Mr. Cross's requests to be returned to Massachusetts and his offer to
sign even an additional waiver, the New Hampshire authorities refused to
return him to Massachusetts while his appeal remained pending. See App.,
pp. A-18 to A-21.
On December 5, 1986, the New Hampshire Supreme Court affirmed
Mr. Cross's convictions. Only at that juncture did the warden of the New
Hampshire State Prison finally allow Mr. Cross to return to Massachusetts --
22 months after he was sentenced and his trial was complete. See App.,
p. A-21.
Upon his return to the Massachusetts prison system, Mr. Cross resumed
his rehabilitation programs. On December 18, 1987, New Hampshire
' In the IAD agreement that Mr. Cross signed to be brought to New
Hampshire, Mr. Cross specifically agreed to a “waiver of extradition with respect to
any charge or proceeding contemplated [tJhereby,” and “consenti[ed] .. . to the
production of [his] body in any court where . . . required in order to effectuate the
purposes of the Agreement on Detainers." See App., p. A-32.
7
authorities took steps to continue to enforce Mr. Cross's New Hampshire
convictions and sentences, by lodging a detainer in Massachusetts for Mr.
Cross’s return to New Hampshire to serve out his sentence on the bank
robbery convictions following completion of his Massachusetts sentence.
Upon the imminent completion of Mr. Cross's Massachusetts sentence, New
Hampshire authorities invoked this detainer. On May 22, 1992, they
transported Mr. Cross to the New Hampshire State Prison to serve out his
remaining New Hampshire time. Mr. Cross fell approximately 400 work-
credit hours (i.e., four month's worth) short of the hours necessary to obtain
his journeyman's license to work as an electrician. See App., pp. A-21 to A-
22 and A-66.
After his return to New Hampshire, Mr. Cross filed his petition for a
writ of habeas corpus from the New Hampshire state court. Michael
Cunningham, the warden of the New Hampshire State Prison, was named as
a defendant in that proceeding. Mr. Cross sought as his relief, in effect, an
order vacating his New Hampshire convictions and the remainder of his New
Hampshire sentences, due to the LAD and constitutional violations alleged in
the petition. See App., pp. A-14 to A-65.
On November 20, 1992, the Hillsborough County Superior Court
granted the warden's motion to dismiss Mr. Cross's petition with the mere
notation:
Defendant's memorandum in support of his motion to
dismiss is adopted by this court as an accurate statement
of the facts and applicable law. The motion to dismiss
is accordingly granted.
See App., pp. A-11 to A-12.
Mr. Cross then appealed the dismissal directly to the New Hampshire
Supreme Court. On June 27, that Court affirmed the dismissal, holding:
Absent the petitioner's specific waiver agreeing to be
returned to the State if his appeal resulted in a new trial,
we conclude that the State was justified in delaying his
return to Massachusetts. The petitioner was returned to
Massachusetts at the earliest possible time consistent
8
with the expeditions and orderly disposition of the bank
robbery charges against him.
See App., p. A-8. The New Hampshire Supreme Court noted that "we need
not decide in this case when the ‘final disposition of an untried indictment'
occurs since we find that the State's concern over the petitioner's extradition
waiver was justified." App., p. A-7. Mr. Cross's motion for rehearing was
denied on July 28, 1994.
REASONS FOR GRANTING THE WRIT
As this Court recently observed, "[t]he LAD's purpose -- providing a
nationally uniform means of transferring prisoners between jurisdictions --
can be effectuated only by nationally uniform interpretation." Reed v. Farley,
__ US. ___, 1148. Ct. 2291, 2297 (1994). The New Hampshire Supreme
Court's interpretation of the LAD -- specifically, its failure to recognize that
the IAD requires return of the prisoner to the sending jurisdiction after trial
and sentencing -- conflicts with the reported decisions of other state courts of
last resort. The petition should be granted so that the Court can resolve the
conflict.
This petition should be granted for a second reason. While the IAD is
indeed state law, it is a law of the United States as well. Reedv. Farley, _
US. ___, 114. S. Ct. 2291, 2296 (1994), citing Carchman v. Nash, 473 U.S.
716, 719 (1985){the LAD "is a congressionally sanctioned interstate compact
within the Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a
federal law subject to federal construction"); Cuyler v. Adams, 449 U.S. 433,
438-442 (1981)("congressional consent transforms an interstate compact .. .
into a law of the United States"). This case presents for review a situation
where a prisoner's rights under the LAD intersects with his right to appeal his
conviction, and as such raises an important federal question for review.
Through its interpretation of this interstate compact, the New Hampshire
Supreme Court has run roughshod over the main purpose of the statute -- to
minimize disruptions in a prisoner's rehabilitation program by requiring the
speedy and efficient disposition of untried indictments in other jurisdictions.
In doing so, the New Hampshire Supreme Court also has engrafted onto the
IAD a new procedural requirement nowhere found in the interstate compact,
al nia
ee
9
which new requirement unnecessarily burdens prisoners and prison officials
alike. These features of the New Hampshire Supreme Court's decision -- the
evisceration of a federal statute's purpose and the judicial legislation of new
procedural burdens -- heighten the importance of the federal question
presented for review.
I. THE NEW HAMPSHIRE SUPREME COURT'S
CONSTRUCTION OF THE IAD CONFLICTS WITH
DECISIONS OF OTHER STATE COURTS OF LAST
RESORT CONSIDERING WHEN A PRISONER IS TO BE
RETURNED TO THE SENDING JURISDICTION.
In determining whether to grant certiorari to reconsider the ruling of a
state court of last resort, one of the factors this Court considers is whether the
state court has decided a federal question in a way that conflicts with the
decision of another state court of last resort. Sup. Ci. R. 10.1(b). This rule is
intended to permit the Court to resolve splits in authority to ensure the
uniform interpretation of federal law. See Metheny v. Hamby, 488 U.S. 913,
915 (1988) (White, J. dissenting from denial of certiorari) (presenting the
issue whether violations of the LAD are cognizable in federal habeas corpus
proceedings; observing that "where cases present issues over which the
Federal and State courts have divided, this Court has a special obligation to
intercede and provide some definitive resolution of the issues").
This "special obligation to intercede" is particularly pressing where
uniform interpretation of a federal statutory scheme is critical to effectuating
its purpose. See Turnbow v. Comm'r. of Internal Revenue, 368 US. 337, 339
(1961) (certiorari granted "[t]o resolve [a] conflict, on a matter of importance
to the proper interpretation and uniform application of the Internal Revenue
laws"); United States v. Robinson, 361 U.S. 220, 222 (1960) (certiorari
granted because of "the importance of the question to the proper and uniform
administration of the Federal Rules of Criminal Procedure"); Davis v.
Virginian Ry. Co., 361 U.S. 354, 355 (1960) (certiorari granted to decide
question involving the Federal Employers’ Liability Act because of the
importance of the uniform administration of the Act).
As noted above, "[tJhe LAD's purpose -- providing a nationally uniform
means of transferring prisoners between jurisdictions -- can be effectuated
10
only by nationally uniform interpretation." Reedv. Farley, US _,114
S. Ct. 2291, 2297 (1994). Thus, in addition to this Court's general interest in
overseeing the consistent administration of all federal law, the Court should
have an even keener interest in this matter because the effectiveness of the
LAD hinges on uniform interpretation.
Indeed, this Court has frequently granted certiorari to resolve splits of
authority concerning the proper interpretation of the IAD. See, e.g., Reed,
114 S. Ct. at 2296 (1994) (granting certiorari "to resolve a conflict among the
Courts of Appeals on the availability of habeas review of IAD speedy trial
claims"); Carchman v. Nash, 473 U.S. 716, 724 n.3 (1985) (acknowledging
that certiorari was granted due to split among the decisions of federal courts,
state intermediate appellate courts and state courts of last resort concerning
the question whether charges of a probation violation amounted an “untried
indictment, information or complaint” within the meaning of the LAD); Cuyler
v. Adams, 449 U.S. 433, 435 (1981) (observing that certiorari was granted to
resolve a conflict among state and federal courts as to whether a prisoner
incarcerated in a jurisdiction that has adopted the Uniform Criminal
Extradition Act is entitled to the procedural protections of that Act before
being transferred to another jurisdiction pursuant to Article IV of the LAD);
United States v. Mauro, 436 U.S. 340, 348 (1978) (observing that certiorari
was granted due to a split among the Federal Courts of Appeals as to whether
the LAD governs the use of writs of habeas corpus ad prosequendum by the
United States to obtain state prisoners).
In this case, the New Hampshire Supreme Court has rendered a decision
that conflicts with the decisions of at least two other state courts of last resort,
as well as a state intermediate appellate court. Contrary to these decisions, the
New Hampshire Supreme Court has ruled that the "earliest practicable time”
at which a prisoner must be sent back to the sending state will not occur
promptly after trial if the prisoner claims an appeal. According to the New
Hampshire Supreme Court, if the prisoner undertakes a challenge of the
11
underlying conviction by filing an appeal, the prisoner loses the right of
prompt return to the sending state.’
This result conflicts with the clear holdings of other state courts, which
have determined that the "earliest practicable time" occurs immediately after
conviction and sentencing, and that the period of "temporary custody"
afforded to the receiving state under the LAD does not include post-conviction
appeals. The Court thus can, and should, exercise its discretion to resolve the
conflict.
For example, in Hearn v. State, 642 P.2d 757 (Utah 1982), a prisoner
objected that he had continued to be held in the receiving state for two months
following sentencing. The Utah Supreme Court expressly noted that the [AD
“requires that the receiving state . . . return [the prisoner] to the sending state
immediately after his trial," and that the receiving state has an "obligation{]"
to do so following imposition of the sentence. Jd. at 758.°
Likewise, the Maine Supreme Court in Joubert v. McKernan, 588 A.2d
748 (Me. 1991) expressly held that an appeal of the conviction makes no
difference in the requirement of a prompt return. In Joubert, the court held
that both the IAD and the Uniform Criminal Extradition Act independently
required that a prisoner be returned to the sending state immediately after
sentencing, even where the prisoner had appealed, and even where the
prisoner wished to remain in the receiving state pending the appeal. Joubert,
588 A.2d at 749-51. The court explained that requiring that the prisoner be
returned to the sending state "[a]t the earliest practicable time consonant with
the purposes of this agreement" meant that the return had to occur at the
: The New Hampshire Supreme Court purported to sidestep the question of
when the “final disposition of an untried indictment" occurs since "the State's
concern over the petitioner's initial extradition waiver was justified." App., p. A-7.
Nevertheless, by requiring an additional waiver when a prisoner appeals his
conviction, the New Hampshire Supreme Court effectively determined that the
“earliest practicable time" may not necessarily occur until after the appeal has been
decided, at least in the state court.
, In Hearn, because the two-month delay was so short and apparently
inadvertent, the court declined to afford any relief. Hearn, 642 P.2d at 758-59. In
this case, by contrast, the delay was for almost two years, was willful, and imposed
clear prejudice. See infra App., pp. A-21 to A-22, A-66.
12
“termination of prosecution," which, the court held, took place at "the entry
of judgment after sentencing at the trial court level." Jd. at 751. If, as in
Joubert, a prisoner wishing to remain in the receiving state pending his appeal
may not do so, then, a@ fortiori, a prisoner who demands to be returned -- as
did Mr. Cross in this case -- cannot lawfully be retained.
Similarly, the court in State v. Jefferson, 574 A.2d 918 (Md. Ct. App.
1990) dealt with a situation where a prisoner had been convictec!, sentenced,
and taken an appeal (which, in the circumstances of that case, constituted a de
novo trial). The prisoner then objected when, notwithstanding the pendency
of the appeal, he was sent back to the original jurisdiction immediately after
sentencing. Jd. at 918-19. The court, however, specifically rejected any such
complaint. Jd. at 921-22. As the court noted, the IAD "only requires that a
‘trial’ be ‘had’ on the charges. Had the IAD intended to require that the
receiving state hold a prisoner until all appeals were exhausted, rather than
just until completion of the trial, it would have said so in no uncertain
language." Id. at 922 (emphasis added). The court thus found nothing in the
IAD that contemplated retaining custody of a prisoner pending any appeal.
Id. at 921.
There exists, therefore, a direct conflict between these cases and the
New Hampshire Supreme Court's decision in this case. No other case holds
that the "temporary custody" of the receiving state under the IAD includes
appeal periods -- for good and fundamentally important reasons, in light of
the purpose of the interstate compact. See infra pp. 2-4. The Court should
grant the petition to resolve this conflict and to decide whether a receiving
state is permitted to refuse to return the prisoner to his rehabilitation program
in the sending state after trial and sentencing solely because the prisoner has
appealed his conviction.
13
Il. THE NEW HAMPSHIRE SUPREME COURT'S
CONSTRUCTION OF THE IAD RAISES AN IMPORTANT
QUESTION OF FEDERAL LAW THAT SHOULD BE
DECIDED BY THIS COURT.
A. THE DECISION BELOW EVISCERATES ONE OF
THE IAD'S STATUTORY PURPOSES BY
ALLOWING PRISON AUTHORITIES TO
UNNECESSARILY PROLONG DISRUPTIONS IN
A PRISONER'S REHABILITATION PROGRAMS
IN THE SENDING JURISDICTION.
Apart from the conflict among the courts generated by the New
Hampshire Supreme Court's decision, this Court should grant certiorari for a
second reason -- this case presents an important federal question for review,
i.é., the interpretation of the LAD so as to effectuate its purposes.
The IAD is an interstate compact initially proposed in 1956 to protect
the rehabilitation interests of prisoners transferred from one state to another
for trial. United States v. Mauro, 436 U.S. 340, 350-51 (1978). As recently
noted by the First Circuit, "the prisoner's rehabilitation efforts [are] the main
purpose of the Act." United States y. Daniels, 3 F.3d 25, 27 (Ist Cir. 1993).
The LAD protects a prisoner's rehabilitation interests in part by minimizing the
length of the disruption caused by the trial, through two specific types of
protections. First, it requires that the trial commence within a specific amount
of time. N.H. Rev. Stat. Ann. 606-A:1, Articles II(a) and IV(c). Second, it
requires that the prisoner be returned to the sending state "[a}t the earliest
practicable time” after the trial has been prosecuted. N.H. Rev. Stat. Ann.
606-A:1, Article V(e). Both Protections are necessary to achieve the LAD's
Purpose to minimize the disruption of the prisoner's rehabilitation program in
the sending state. See Walker v. King, 448 F. Supp. 580, 584 (S.D.N_Y.
1978)(the LAD is intended to "protect prisoners and {the] programs for their
rehabilitation" by "minimizing interruptions in the rehabilitative program in
which the prisoner is engaged").
The plain language of the IAD makes clear that New Hampshire only
had "temporary custody" of Mr. Cross for the “prosecution” of the "untried
indictments" aj issue, and was required to retum him to the sending
jurisdiction “at the earliest practicable time" thereafter Under the LAD, once
14
the indictment has been tried, the custody afforded by the IAD expires. This
point is particularly well-articulated in United States v. Coffman, 905 F.2d
330 (10th Cir. 1990), where the court was confronted with the question of
whether "trial" under the LAD includes sentencing. Finding that “trial” meant
"trial" and no more, the court explained:
[W]e decline to adopt a mechanical reading of the IAD that
would require a receiving state to retain custody of the prisoner
until the completion of sentencing. Such retained custody, which
might last for a period of several weeks or months, could
seriously disrupt the prisoner's rehabilitative program in the
sending state. Given the IAD's policy of facilitating
rehabilitation and the diminished uncertainty resulting from
unsentenced versus untried charges, we refuse to hold that trial
includes sentencing and require receiving states to retain custody
at the expense of the prisoner's rehabilitation program in the
sending state.
905 F.2d at 333 (emphasis added). Accord Moody v. Corsentino, 843 P.2d
1355, 1369-72 (Colo. 1993)(holding that “trial” under the IAD does not
Other courts, too, have recognized that protecting a prisoner's
rehabilitation program is the LAD's paramount concern:
the [IAD] is designed to insure that interruptions of the sending
jurisdiction's incarceration are minimized so that the prisoner's
continuous physical presence in rehabilitative programs at the
state institution from which he is removed to face charges
elsewhere, will be maximized.
United States v. Chico, 558 F.2d 1047, 1049 (2d Cir. 1977), cert. denied, 436
U.S. 947 (1978) (internal quotations omitted); see also State v. Burrus, 729
P.2d 926, 934 (Ariz. Ct. App.)(IAD is intended to protect participation in
education and rehabilitation programs in sending state), modified on other
grounds, 729 P.2d 935 (Ariz. 1986); State v. Grizzell, 399 So.2d 1091, 1092
(Fla. Dist. Ct. App. 1981)("stated purpose of the [IAD] [is] to ‘prevent
excessive interference with the prisoner's rehabilitation in a state prison
system”); Neville v. Friedman, 367 N.E.2d 1341 (Ill 1977)(same), cert.
15
denied, 437 U.S. 903 (1978). The purpose of the IAD, in other words, is to
ensure that a prisoner who is sent to another state for trial gets that trial and
is speedily returned.
In construing the LAD to allow a post-sentence delay of up to 22-
months before returning a prisoner to the sending state, the New Hampshire
Supreme Court thwarted the statute's very purpose. State v. Grizzell, 399
So.2d 1091, 1093 (Fla. Dist. Ct. App. 1981)(noting that retaining a prisoner
during an appeal, which in that case lasted 20 months, "would clearly have
been excessive interference with his rehabilitation in the [sending state's]
prison system"). Given that the statute contemplates that a trial must occur
within six months at the latest (so as to ensure a speedy return), it makes no
sense to construe the statute as permitting (as in this case) a post-sentence
delay of up to twenty-two months, i.e., a post-sentence delay that is four times
as long as the statutory maximum for pre-trial delay. The New Hampshire
Supreme Court's construction of the IAD allowing such an open-ended post-
sentence delay squarely contravenes the statute's purpose and should not be
permitted to stand.
B. THE NEW HAMPSHIRE SUPREME COURT'S
DECISION ENGRAFTS A NEW PROCEDURAL
REQUIREMENT ONTO THE IAD’ THAT
NEEDLESSLY BURDENS PRISONERS AND PRISON
AUTHORITIES ALIKE.
-In affirming the Superior Court's dismissal of Mr. Cross's habeas
petition, the New Hampshire Supreme Court cited Mr. Cross's failure to
execute a specific waiver agreeing to return to New Hampshire for a retrial if
his appeal was successful and his conviction overturned. Specifically, that
court held:
Absent the petitioner's specific waiver agreeing to be returned to
the State if his appeal resulted in a new trial, we conclude that the
State was justified in delaying his return to Massachusetts. The
petitioner was returned to Massachusetts at the earliest
practicable time consistent with the expeditious and orderly
dispositign of the bank robbery charges against him.
16
See App., p. A-6. The New Hampshire Supreme Court, therefore, necessarily
found that Mr. Cross's initial waiver -- the waiver that brought him from
Massachusetts to New Hampshire to be tried in the first place -- would not be
sufficient to permit the New Hampshire authorities to regain custody over Mr.
Cross if his convictions were overturned on appeal and the New Hampshire
authorities then sought to retry Mr. Cross on the same charges. According to
the court, an additional waiver was required.
Petitioner has found no other court taking such an extreme position, and
for good reason. There is nothing in the IAD that requires an additional
prisoner waiver or that even acknowledges that an additional waiver is
possible. Indeed, the statute contemplates only the original waiver by which
the trial process begins. Thus, the New Hampshire Supreme Court, by
"finding" that an additional waiver is required before a prisoner who appeals
his conviction can be returned to the sending state and his program of
rehabilitation, has engaged in judicial legislation by fiat, unnecessarily
burdening prisoners and prison officials alike. Following this precedent, no
longer can a state return to the sending state a prisoner who appeals his
conviction unless and until that prisoner has provided officials with a specific
waiver agreeing to return if a retrial is granted.
This new "requirement" devised by the New Hampshire Supreme Court
needlessly adds a level of substantial burden, complexity, and bureaucracy for
persons under the IAD. Significantly, it resulted in a 22-month delay for Mr.
Cross in this case. Moreover, it directly conflicts with the decisions in other
jurisdictions. See State v. Jefferson, 574 A.2d 918, 918-19 (Md. Ct. App.
1990)(noting that the LAD does not provide for retaining a prisoner following
conviction and sentencing even where the prisoner has appealed invoking his
right to an automatic new trial); Joubert v. McKernan, 588 A.2d 748, 751
(Me. 1991)(the LAD requires a prisoner be returned to the sending state
immediately after sentencing, even if the prisoner has appealed and wishes to
remain in the receiving state pending the appeal); State v. Grizzell, 399 So.2d
1091, 1092 (Fla. Dist. Ct. App. 1981)(1AD does not provide for retaining
prisoner in the receiving state during the post-trial appeal period). See also
Shanks v. Commonwealth, 574 S.W.2d 688, 690 (Ky. Ct. App.
1978)(returning prisoner to the sending state during the period between a
mistrial and a subsequent retrial does not trigger the anti-shutiling provisions
17
of the LAD, since the IAD's requirement of a "trial" is Satisfied); Wilkett v.
State, 753 P.2d 383, 387 (Okla. Crim. App. 1988)(same); United States y.
Evans, 423 F. Supp. 528, 532 n.7 (S.D.N.Y. 1976) (same).
The New Hampshire Supreme Court's decision in this case also creates,
out of whole cloth, a new and potentially onerous requirement for the state --
one that handcuffs prison authorities by stripping them of their automatic (and
mandatory) ability to return Prisoners to the sending states pending appeal.
At the same time, this new requirement gives prisoners critical ammunition
to use against the receiving state, by suggesting that the prisoner's initial [AD
waiver of extradition is somehow limited. For these reasons, too, this Court
should review the New Hampshire Supreme Court's rewriting of this interstate
compact.
18
CONCLUSION
For the foregoing reasons, the Court should grant the petition for
certiorari.
Respectfully submitted,
Mark P. Szpak
Counsel of Record
John R. Baraniak, Jr.
David R. Suny
ROPES & GRAY
One International Place
Boston, MA 02110-2624
(617) 951-7000
Counsel for Petitioner
A-l
[Reprinted From Original]
NOTICE: This opinion is subject to motions for rehearing under Rule
22 as well as formal revision before publication in the New Hampshire
Reports. Readers are requested to notify the Clerk/Reporter, Supreme
Court of New Hampshire, Supreme Court Building, Concord, New
Hampshire 03301, of any errors in order that corrections may be made
before the opinion goes to press.
THE SUPREME COURT OF NEW HAMPSHIRE
Hillsborough-northern judicial district
No. 93-022
WAYNE F. CROSS
WARDEN, NEW HAMPSHIRE STATE PRISON
June 27, 1994
Kopes & Gray, of Boston, Massachusetts (Mark P. Szpak and John
R. Baraniak, Jr. on the brief, and Mr. Szpak orally), for the plaintiff.
Jeffrey R. Howard, attorney general (William C. McCallum,
assistant attorney general, on the brief, and Lucy C. Hodder, assistant
attorney general, orally), for the defendant.
A-2
(Reprinted From Original]
BROCK, C.J. The petitioner, Wayne F. Cross, appeals from an order
of the Superior Court (Goode, J.) dismissing his petition for writ of habeas
corpus, declaratory judgment, and injunctive relief. He contends that New
Hampshire authorities wilfully violated the Interstate Agreement on
Detainers (IAD), RSA chapter 606-A (1986), by detaining him in the State
during the pendency of his appeal, effectively penalizing him for
exercising his night to appeal and violating his rights to due process and
equal protection under the State and Federal Constitutions. We affirm.
In late 1982, the petitioner twice robbed the Village Savings Bank in
New Ipswich. Hillsborough County authorities subsequently learned that
the petitioner was incarcerated at the Massachusetts Correctional Institute
in Norfolk, Massachusetts. There, he was participating in alcohol abuse
education and a rehabilitation program that included training as an
electrician. On November 9, 1983, the petitioner availed himself of the
IAD to "request for a final disposition to be made of the indictment”
pending against him in New Hampshire regarding the 1982 bank robberies.
See RSA 606-A:1; art. III(a). He was thereupon transferred to the New
Hampshire State Prison; on December 5, 1984, he was convicted on two
counts of bank robbery after nearly a year of pretrial and trial delays. After
he was sentenced to two consecutive terms of imprisonment at the New
Hampshire State Prison on February 8, 1985, he filed a direct appeal to this
court. His convictions were affirmed on December 5, 1986, State v. Cross,
128 N.H. 732, 733, 519 A.2d 272, 273 (1986), and he was returned to
Massachusetts custody approximately five days later.
In May 1992, upon the imminent completion of his Massachusetts
sentence, the petitioner was transported back to the New Hampshire State
Prison to serve the remainder of his New Hampshire sentences. He filed a
petition for writ of habeas corpus, declaratory judgment, and injunctive
relief, alleging that State authorities had wilfully breached the requirements
A-3
[Reprinted From Original]
of RSA 606-A:1, art. V(e) by not returning him to Massachusetts custody
during the pendency of his direct appeal of his bank robbery convictions to
this court. The trial court dismissed his petition and this appeal followed.
On an appeal from an order granting a motion to dismiss, we assume
the truth of both the facts alleged in the plaintiff's pleadings and all
reasonable inferences therefrom as construed most favorably to the
plaintiff. If the facts as alleged would constitute a basis for legal relief, the
motion to dismiss should be denied. Collectramatic, Inc. v. Kentucky
Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985).
All of the petitioner's arguments stem from his claim that State
authorities violated RSA 606-A:1, art. V(e). He argues that the [AD
expressly requirements that a prisoner "must be returned to the sending
state at the earliest practicable time following trial," and that the purpose of
the IAD, "to ensure a speedy return and thus minimize disruption in the
prisoner's program of rehabilitation in the sending state," was "eviscerated"
by the violation. Accordingly, we consider whether the State violated the
requirement of RSA 606-A:1, art. V(e). RSA 606-A:1, art. V(e) reads:
"At the earliest practicable time consonant with the purposes of this
agreement, the prisoner shall be returned to the sending state.”
"In interpreting a statute, we will ascribe to statutory words and
phrases their usual and common meaning, unless the statute itself suggests
otherwise." Appeal of Campton School District, 138N.H.,_—=—, 639
A.2d 241, 242 (1994) (quotation and brackets omitted). The usual and
1780 (unabridged ed. 1961), Ra Maiamat ten tAD did mot
choose to place @ specific time restriction upon the prosecuting authority
A-4
[Reprinted From Original]
here as they did in other sections of the statute. Cf. RSA 606-A:1, art.
III(a), art IV(c).
While specific provisions of the IAD are intended to encourage the
efficient administration of prisoner rehabilitation programs, other purposes
of the statute provide for the cooperative administration of the interstate
criminal justice system. Article I of the statute reads:
"The party states find that charges outstanding
against a prisoner, detainers based on untried
indictments, informations or complaints, and
difficulties in securing speedy trial of persons already
incarcerated in other jurisdictions, produce
uncertainties which obstruct programs of prisoner
treatment and rehabilitation. Accordingly, it is the
policy of the party states and the purpose of this
agreement to encourage the expeditious and orderly
disposition of such charges and determination of the
proper status of any and all detainers based on untried
indictments, informations or complaints. The party
states also find that proceedings with reference to such
charges and detainers, when emanating from another
jurisdiction, cannot properly be had in the absence of
RSA 606-A:1, art. I (emphasis added).
We have stated that the purpose of the IAD is “to give formal
recognition to the practice of honoring detainers filed by other states
A-5
[Reprinted From Original]
against prisoners confined in this state and to provide for trial here of
persons serving sentences in other states prior to the expiration of their
sentences there," Allen v. Hancock, 109 N.H. 254, 255, 248 A.2d 632, 632
(1968), and "to secure the speedy trial of persons incarcerated in
jurisdictions that enacted similar statutes,” Petition of Lemieux, 109 N.H.
258, 259, 248 A.2d 634, 635 (1968). See also Carchman vy. Nash, 473 U.S.
716, 720, 729-32 (1985). In this case, we interpret RSA 606-A:1, art. V(e)
to mean that the petitioner shall be returned to Massachusetts at the earliest
possible time consistent with the expeditious and orderly disposition of the
bank robbery charges against him.
The State argues that the petitioner was not returned to
Massachusetts prior to the completion of his appeal because prosecuting
authorities were concerned over the adequacy of his waiver of extradition
between February 1985 and December 1986. Further, they were concerned
that if the petitioner were returned to Massachusetts and if a successful
appeal resulted in a new trial, the anti-shuttling provisions of the LAD, see
RSA 606-A:1, art. III(d), would effect a dismissal with prejudice. The
State concludes that the delay in returning the petitioner to Massachusetts
was necessary for the orderly disposition of the bank robbery charges
against him. We agree.
On November 9, 1983, the petitioner signed a standard form waiver
in connection with his [AD request. The waiver reads, in pertinent part:
Re seca REC
[Reprinted From Original]
ebucheretuadiiiieemmmmamieniiie
sentence there imposed upon me, after completion of
my term of imprisonment in this state. | also agree
that this request shall constitute a consent by me to the
production of my body in any court where my
presence may be required in order to effectuate the
purposes of the Agreement on Detainers and a further
consent voluntarily to be returned to the institution in
which I am now confined."
(Emphasis added.) See RSA 606-A:1, art. IIl(e).
Subsequent to the petitioner's sentencing in February 1985, county
authorities informed his counsel that they intended to hold him in the State
pending the outcome of his appeal, due to the inadequacy of the waiver.
Not until June 1986 did the petitioner, through counsel, indicate his
willingness to sign "whatever waivers are required to effect his transfer to
Massachusetts." In October 1986, the petitioner moved for his return to
Massachusetts; the State objected to the motion absent the petitioner's
"specific waiver that he would agree to be returned to the State . .. for trial
if his] appeal . . . results in a new trial being ordered." In December 1986,
the petitioner's conviction was affirmed, and he was returned to
Massachusetts. His motion was subsequently dismissed as moot.
By its plain language, the signed waiver operated as a waiver of
extradition with respect to amy proceeding necessary for the final
to RSA 606-A:1, art. V(d), however, and argues that the custody afforded
by the LAD expires once an indictment has been "tried." RSA 606-A:1, art.
V(d) states, in pertinent part:
SRAM EAT OD
;
OP anette Pas
interialne bacaezigesigy FOUL ORY Sa
[Reprinted From Original]
"The temporary custody referred to in this agreement
shall be only for the purpose of permitting prosecution
on the charge or charges contained in one or more
untried indictments, informations or complaints which
form the basis of the detainer or detainers or for
Prosecution on any other charge or charges arising out
of the same transaction."
Further, he argues that an indictment has been "tried" either upon
completion of the trial itself or upon sentencing; he rejects any suggestion
that an indictment is "tried" only upon the completion of post-sentencing
appeals.
We need not decide in this case when the "final disposition of an
untried indictment” occurs since we find that the State's concern over the
petitioner's extradition waiver was justified. Assuming arguendo the
petitioner is correct that an indictment is "tried" prior to the completion of
post-sentencing appeals, then the petitioner's waiver of extradition might
have been insufficient in the event of a successful appeal and new trial.
Had the petitioner been returned to Massachusetts after his indictment had
been "tried," the State would have had to lodge a second detainer against
him in order to retried him for the second trial. See Shanks v. Com., 574
S.W.2d 688, 690 (Ky. Ct. App. 1978); State v. Jefferson, 319 Md. 674,
683-84, 574 A.2d 918, 922 (1990). The State would have been forced to
seek a second extradition waiver, which the petitioner might not have
signed. Cf RSA 606-A:1, art. IV(d).
Altematively, assuming arguendo that the "final disposition of an
untried indictment” includes the completion of all related proceedings, then
the anti-shuttling provisions of the [AD might have served to dismiss the
id
A-8
[Reprinted From Onginal]
indictment had the petitioner been returned to Massachusetts and a new
trial ordered. RSA 606-A:1, art III(d) reads in pertinent part:
"If trial is not had on any indictment, information or
complaint contemplated hereby prior to the return of
the prisoner to the original place of imprisonment,
such indictment, information or complaint shall not be
of any further force or effect, and the court shall enter
an order dismissing the same with prejudice."
"The firm rules from the foregoing statutes are . . . that return of the
prisoner to the custodial sending State works a dismissal of all undisposed
charges." State v. McGann, 126 N.H. 316, 320-21, 493 A.2d 452, 455-56
(1985). In either case, the State might be deprived of the ability to retry
the petitioner on the bank robbery charges. Such a result would run
counter to the purpose of an "orderly disposition" of the charges against the
petitioner. —
Absent the petitioner's specific waiver agreeing to be returned to the
State if his appeal resulted in a new trial, we conclude that the State was
justified in delaying his return to Massachusetts. The petitioner was
returned to Massachusetts at the earliest possible time consistent with the
expeditious and orderly disposition of the bank robbery charges against
him. Accordingly, we conclude that the State did not violate the
requirements of RSA 606-A:1, art. V(e). Further, we reject the defendant's
argument that such a construction of the LAD violates his rights to due
process and equal protection under the State and Federal Constitutions.
The defendant was retained in the State not because he exercised his right
to appeal, but because he failed to execute a specific waiver. Under the
facts of this case, we find no violation of the defendant's constitutional
rights.
65d
CaN TUR See oe eee Caer)
a
;
»
4
&
‘
E
A-9
[Reprinted From Original]
Affirmed.
THAYER, J., did not sit; the others concurred.
A-10
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 93-022, Wayne F. Cros: 1am.
Warden, the court upon July 28, 1994, sentry tilled aie
Plaintiff's motion for rehearing is denied.
Distribution:
Mark P. Szpak, Esquire
William C. McCullum, Esquire
Hillsborough County (N) Superior Court 92-E-562
Hon. Frederick D. Goode
Theresa Hayes, Supreme Court
File
Howard J. Zibel,
Clerk
A-11
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
NORTHERN DISTRICT OF HILLSBOROUGH COUNTY
John M. Safford, Clerk
300 Chestnut Street
Manchester, N.H. 03101-2490
(603) 669-7410
December 10, 1992
NOTICE OF DECISION
No: 92-E-562
Wayne Cross v. Michael Cunningham, Warden
You are hereby notified that on November 20, 1992 the following
order was entered in the above matter:
RE: Respondent's Motion to Dismiss
(SEE COPY OF RULING ATTACHED HERETO)
(Goode, J.)
JMS/jtb
Copy to: Mark P. Szpak, Esq.
ROPES & GRAY
One International Place
A-12
[Reprinted From Original]
William C. McCallum, Esq.
STATE OF NH-DEPARTMENT OF JUSTICE
State House Annex
Concord, NH 03301
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH COUNTY
SUPERIOR COURT
92-E-562
Wayne F. Cross
Vv.
Michael Cunningham, Warden
RULING
Defendant's memorandum in support of his motion to dismiss is
adopted by this Court as an accurate statement of the facts and applicable
law. The motion to dismiss is accordingly GRANTED.
Dated: November 20, 1992
FREDERICK D. GOODE,
Presiding Justice
A-14
{Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, ss. APRIL TERM, 1992
SUPERIOR COURT
WAYNE F. CROSS
V.
MICHAEL CUNNINGHAM,
WARDEN OF THE NEW HAMPSHIRE STATE PRISON,
PETITION FOR WRIT OF HABEAS CORPUS, AND
RD IEF
Introduction
This is an action for a Writ of Habeas Corpus pursuant to R.S.A.
534, and for declaratory and injunctive relief pursuant to R.S.A. 491:22
and 498:1-2, by and on behalf of petitioner Wayne F. Cross. The action
arises from conduct by New Hampshire authorities in willful violation of
Mr. Cross's rights under the Interstate Agreement on Detainers, R.S.A.
606-A ("IAD") and the New Hampshire and United States Constitutions.
As set forth in more detail below, New Hampshire obtained jurisdiction
pursuant to the LAD to try Mr. Cross on certain criminal charges in late
1984 and (following conviction) imposed a sentence. However, New
Hampshire authorities then refused to return him to Massachusetts "at the
earliest practicable time” following his trial, in direct contravention of the
Ae nA ee ee ahaa line
[Reprinted From Original]
mandates of the LAD, and despite repeated requests by and on behalf of
Mr. Cross that the LAD be complied with. Instead, New Hampshire
authorities continued his incarceration in New Hampshire for 22 months
while an appeal of his conviction remained pending, thus penalizing Mr.
Cross for taking and continuing the appeal. This petition accordingly seeks
(a) a declaratory judgment that by virtue of these breaches and
infringements of Mr. Cross's fundamental rights, New Hampshire
authorities lost their jurisdiction to continue to enforce the conviction and
sentence, and (b) orders by the Court issuing a Writ of Habeas Corpus and
otherwise affording Mr. Cross due relief by vacating his conviction and
sentence (or such portions as remain) and requiring that all restraints
flowing therefrom be removed.
Parties
1. Petitioner, Wayne F. Cross, is an individual who is currently an
inmate at the New Hampshire State Prison in Concord, New Hampshire.
2. The respondent, Michael Cunningham, is Warden of the New
Hampshire State Prison in Concord, New, Hampshire.
—
3. Jurisdiction is founded on R.S.A. 534: 1, 534:22, 491:22, 498:1
and 498:2.
[Reprinted From Onginal]
Facts
4. In 1983, Mr. Cross was serving a sentence at the Massachusetts
Correctional Institution at Norfolk, Massachusetts ("MCI-Norfolk")
pursuant to a Massachusetts conviction.
5. While in prison in Massachusetts, Mr. Cross was participating in
a rehabilitation program that included, inter alia, the opportunity to acquire
training and experience in his trade as an electrician. Mr. Cross was
actively involved in this program, earning credits towards an electrician's
license through a course of schooling and through work experience under
the direction of a licensed master electrician. He was also involved in an
alcohol abuse program.
6. In the latter part of 1983, New Hampshire authorities in
Hillsborough County began to attempt to secure jurisdiction to prosecute
certain criminal charges against Mr. Cross. They did so by lodging a
detainer/warrant against him with M.C.I.-Norfolk in Massachusetts. Upon
learning of the detainer/warrant, Mr. Cross in November of 1983 invoked
the protections afforded by the LAD (to which both New Hampshire and
Massachusetts are parties) to obtain a speedy trial of the charges
underlying the detainer/warrant. A copy of Mr. Cross's LAD request is
attached hereto at Exhibit A ("Form 2").
7. The LAD is in effect in New Hampshire pursuant to R.S.A. 606-
A:1. As set out in Article I of the statute, the [AD was enacted to avoid the
disruption in prisoner rehabilitation that results from the imposition of
detainers arising from charges in other jurisdictions. It provides, in Article
Ill(a), that prisoners may request that they be sent to a state where charges
[Reprinted From Original]
are pending for the purpose of a prompt and speedy trial of the charges. In
invoking the LAD, for example, Mr. Cross specifically agreed to a "waiver
of extradition with respect to any charge or proceeding contemplated
[t]hereby,” and "consent{ed] . . . to the production of [his] body in any
court where .. . required in order to effectuate the purposes of the
Agreement on Detainers," as set forth in Exhibit A ("Form 2"). In turn, the
[AD requires, in Articles V(d) and (c), that the receiving state must return
the prisoner to the state from which he was sent "[a]t the earliest
practicable time” following trial, to allow the prompt resumption of
rehabilitative and other programs. In New Hampshire, all departments,
officers and employees of the state are specifically charged with the
enforcement of the LAD, by mandate of the legislature set forth in R.S.A.
606-A:3.
8. New Hampshire accepted jurisdiction over Mr. Cross under the
IAD. A copy of MCI-Norfolk’s "Offer to Deliver Temporary Custody”
(which references Article V of the LAD), and a copy of New Hampshire's
acceptance, are attached hereto at Exhibit A ("Form 4" and "Form ~
respectively). On or about December 19, 1983, Mr. Cross was transported
to New Hampshire. A public defender was appointed to represent him.
For the entire period while awaiting trial, Mr. Cross was confined, under
maximum security, in the New Hampshire State Prison in Concord, New
Hampshire.
9. On or about November 26, 1984, trial commenced in the
Hillsborough County Superior Court, in Docket Nos. 83-1456 and 83-
1457. On December 5, 1984, Mr. Cross was found guilty on each of the
A-18
[Reprinted From Original]
two counts, which conviction was subsequently appealed.
10. On or about February 8, 1985, the petitioner was sentenced by
the Hillsborough County Superior Court to 7 1/2 to 15 years on each count
consecutively (hereinafter collectively referred to as "the sentence"). He
was ordered immediately committed to the New Hampshire State Prison.
Copies of the mittimuses are attached hereto at Exhibit B. The Sheriff of
Hillsborough County delivered the petitioner to the Warden of the New
Hampshire State Prison pursuant to the above-mentioned mittimuses.
11. However, the Warden of the New Hampshire State Prison,
respondent Michael Cunningham, thereupon made no efforts whatsoever to
arrange for any return of Mr. Cross to Massachusetts. This occurred even
though a) the imposition of the sentence concluded the trial proceedings on
the charges on which Mr. Cross had been brought to New Hampshire, b)
his presence in New Hampshire was no longer necessary since all trial
proceedings, including the sentencing, had been completed, c) the IAD
expressly required that he be returned to M.C.I.-Norfolk in Massachusetts
"at the earliest practicable time" following the conclusion of his trial, and
d) under R.S.A. 606-A:5, the New Hampshire legislature specifically
provided that the warden has a "mandatory" duty to "give over" any
prisoner held by him "whenever so required by the operation of the
agreement on detainers."
12. Instead, New Hampshire authorities, including, without
limitation, Paul A. McDonough, the Assistant County Attorney in
Hillsborough County who had prosecuted Mr. Cross, and respondent
Cunningham (himself and/or through his employees), had specifically
A-19
[Reprinted From Original]
determined to retain Mr. Cross in New Hampshire because Mr. Cross had
exercised his right to pursue an appeal of his conviction. Mr. McDonough
admitted this fact in a conversation with the public defender for Mr. Cross
on or about February 19, 1985, which was memorialized in a February 20,
1985 letter from the public defender to Mr. McDonough, a copy of which
is attached hereto as Exhibit C. Mr. McDonough now claimed that Mr.
Cross's LAD waivers were sufficient to bring him to New Hampshire for
trial but somehow insufficient to return him to Massachusetts "at the
earliest practicable time" thereafter -- solely due to Mr. Cross's exercise of
his rights of appeal.
13. Mr. Cross and counsel on his behalf objected repeatedly to this
wrongful refusal to retum Mr. Cross to Massachusetts. For example, on
March 6, 1985, counsel for Mr. Cross demanded by letter to Mr.
McDonough that Mr. Cross be returned to Massachusetts pursuant to
Article V of the LAD. A copy of this letter is attached as Exhibit D. The
14. Mr. Cross continued to pursue his interest in being returned to
Massachusetts. In August of 1985, he specifically inquired about the status
of his prospective return. However, Mr. Cross was told by the
Administrator of Offender Records for the New Hampshire State Prison,
Joseph C. Wehrle, that "[tJhe County Attorney was keeping you in NH
until your appeal was completed." A copy of Mr. Cross's inquiry and Mr.
Wehrle's response is attached hereto as Exhibit E.
15. Independent efforts to transfer Mr. Cross to Massachusetts were
similarly rejected. In mid-March, 1986, the District Attomey in Middlesex
A-20
[Reprinted From Original]
County in Massachusetts requested temporary custody of Mr. Cross to
have him stand trial in that county on other charges. The request -- a copy
of which is attached as Exhibit F -- was addressed directly to respondent
Cunningham. However, personnel in the Hillsborough County Attorney's
office continued to refuse Mr. Cross’s transfer back to Massachusetts
pending Mr. Cross's appeal, and so informed Middlesex County
authorities. A copy of the correspondence confirming this response is
attached as Exhibit G.
16. As contacts continued, counsel for Mr. Cross then specifically
wrote to Mr. McDonough in the Hillsborough County Attorney's office, on
June 24, 1986. The letter stated that Mr. Cross would "sign whatever
waivers are required to effect his transfer to Massachusetts authorities,”
and asked that any further waiver form that was necessary be sent directly
to Mr. Cross for him to execute. A copy of this letter is attached as Exhibit
H. Mr. McDonough made no response. Again, this effort to secure the
New Hampshire authorities’ compliance with the LAD was totally
unavailing.
17. In July of 1986, Mr. Cross filed a motion pro se in the
Hillsborough County Superior Court to have the public defender who had
represented him in his trial reappointed to represent him in connection with
his effort to be returned to Massachusetts in compliance with the LAD.
Upon reappointment, Mr. Cross's counsel then made an appropriate motion
with the Court in the original criminal action, Docket Nos. 83-1456 and
1457, for enforcement of the [AD requirement that Mr. Cross be returned.
A copy of the motion is attached hereto as Exhibit 1.
A-21
[Reprinted From Original]
18. However, the Warden of the New Hampshire State Prison and
the Hillsborough County Attorney's Office continued to fail and refusé to
take any steps to allow or facilitate Mr. Cross's return to the relevant
authorities in Massachusetts. In particular, the Hillsborough County
Attorney's Office opposed the motion by claiming that Mr. Cross had given
insufficient waivers to allow him to be returned -- despite the full [AD
waivers given by Mr. Cross in the IAD "Form 2" by which New
Hampshire had accepted jurisdiction over him, and despite Mr. Cross's
counsel's direct, written statement to Mr. McDonough months earlier that
Mr. Cross would "sign whatever waivers are requested" and asking that
any necessary form be sent to Mr. Cross for his signature. A copy of the
opposition, signed by Mr. McDonough, is attached hereto as Exhibit J
19. On December 5, 1986, before the motion could be resolved, the
New Hampshire Supreme Court rendered a decision on Mr. Cross's appeal
of his criminal conviction. The conviction was affirmed.
20. At that juncture, the Warden of the New Hampshire State Prison
finally allowed Mr. Cross to be transferred back to Massachusetts. The re-
transfer to Massachusetts occurred on or about December 10, 1986 --
twenty-two months following the imposition of sentence to complete the
trial proceedings. The motion that had been filed to obtain a re-transfer
was thereupon dismissed as moot, as reflected in the attached Exhibit K
21. The twenty-two month refusal by the Warden of the New
Hampshire State Prison -- acting himself and in cooperation with
Hillsborough County authorities -- to return Mr. Cross to Massachusetts
caused a severe and undue disruption to Mr. Cross's rehabilitation program.
A-22
[Reprinted From Original]
For example, the New Hampshire State Prison did not have a training
program in the electrical trade in which Mr. Cross could participate.
Therefore, Mr. Cross lost approximately 2400 hours of credits that he
would otherwise have had an opportunity to earn in pursuing his
electrician's license. Also, because of a lack of comparable opportunities
while incarcerated in the New Hampshire State Prison, Mr. Cross was
precluded for the duration of his stay from continuing his school
enrollment and participation in an alcohol abuse program. The retention
further interfered with Mr. Cross's efforts to contend with charges pending
against him in Massachusetts. The undue and substantial disruption that
Mr. Cross suffered is precisely what the LAD (as specifically adopted by
the New Hampshire legislature) was intended to prevent, and what New
Hampshire authorities agreed to avoid by agreeing to take jurisdiction over
Mr. Cross pursuant to the LAD's terms and conditions.
22. Subsequently, on December 18, 1987, New Hampshire
authorities took steps to continue to enforce Mr. Cross's conviction and
sentence, by causing a detainer to be lodged at M.C.1.-Norfolk in
Massachusetts for Mr. Cross's return to New Hampshire to serve out his
sentence on the New Hampshire offenses following completion of his
sentence in Massachusetts. A copy of the detainer (with a copy of the
December 18, 1987 letter from New Hampshire authorities) is attached
hereto at Exhibit L. Upon the imminent completion of Mr. Cross's
Massachusetts sentence, New Hampshire authorities invoked the detainer
and on May 22, 1992, transported Mr. Cross back to the New Hampshire
A-23
[Reprinted From Original]
State Prison in Concord for service of such portion of his New Hampshire
sentence as remains.
atior nterstate Agreement on Detainers, R.S A. 534
23. Petitioner hereby repeats and realleges paragraphs | though 22
of the petition as if alleged herein.
24. By virtue of the conduct and events set forth above, New
Hampshire authorities wilfully breached the requirements of Articles V (d)
and (¢€) of the Interstate Agreement on Detainers, R.S.A. 606-A:1, Article
V(d) and (e). This breach constituted a breach of the agreed-upon terms
under which they obtained jurisdiction over Mr. Cross. As a result, the
jurisdiction of New Hampshire authorities to continue to enforce the
conviction and sentence was nullified. The restraint on Mr. Cross imposed
by the pendency of the conviction and sentence is therefore without
sufficient cause or due order of law.
25. Petitioner accordingly requests that the Court afford the
petitioner such relief as is just and appropriate, including, without
limitation:
a) a Writ of Habeas Corpus pursuant to R.S.A. 534:1 and
534:22 mandating that all such restraints be discharged forthwith:
b) adeclaratory judgment pursuant to R.S.A. 491:22 that Mr.
Cross's conviction and sentence are null and void, and vacating them (or
such portion of the sentence as remains) accordingly; and
A-24
[Reprinted From Original]
¢) apreliminary and permanent injunction pursuant to R.S.A.
498: 1-2 enjoining continued enforcement of the conviction and any
remainder of the sentence.
of the petition as if alleged herein.
27. The protections afforded by the New Hampshire legislature
through its adoption of the Interstate Agreement on Detainers, R.S.A. 606-
A are of constitutional dimension, in that the LAD is specifically intended
to advance and protect prisoners’ interests in rehabilitation, the special
significance of which is set out in Article XVIII of Part 1 of the New
Hampshire Constitution. New Hampshire authorities deprived Mr. Cross
of the benefit of these protections in this case. In refusing to honor Mr.
Cross's right to be returned to Massachusetts under the LAD as set forth
above, moreover, New Hampshire authorities imposed a burden on Mr.
Cross that penalized him for exercising his right to seek an appeal of his
criminal conviction. Through the imposition of this penalty, thus, New
Hampshire authorities not only violated the LAD, but also unfairly
rights to due process, equal protection, and other interests under Articles
XIl, XIV, XV, and XVIII of Part I of the New Hampshire Constitution, and
his fundamental nights to due process, equal protection, and otherwise
under the Fourteenth Amendment of the United States Constitution.
A-25
[Reprinted From Original]
28. Petitioner accordingly requests that the Court afford the
petitioner such relief as is just and appropriate, including, without
limitation:
a) a Writ of Habeas Corpus pursuant to R.S.A. 534:1 and
534:22 mandating that all such restraints be discharged forthwith;
b) a declaratory judgment pursuant to R.S.A. 491:22 that Mr.
Cross's conviction and sentence are null and void, and vacating them (or
such portion of the sentence as remains) accordingly; and
¢) apreliminary and permanent injunction pursuant to R_S.A.
498:1-2 enjoining continued enforcement of the conviction and any
remainder of the sentence.
Count I]
(Violation of 42 U.S.C. § 1983
29. Petitioner hereby repeats and realleges paragraphs 1 though 28
of the petition as if alleged herein.
30. The Interstate Agreement on Detainers, as adopted by the
various states, is an interstate compact authorized by Congress that has the
force and effect of federal law. The violation of the terms and conditions
of the LAD described above constituted a violation of fundamental rights
afforded to Mr. Cross under the LAD and/or the Fourteenth Amendment of
the United States Constitution, and resulted from actions and conduct by
respondent Cunningham, Hillsborough Assistant County Attorney
McDonough and/or other New Hampshire authorities acting under color of
A-26
{Reprinted From Original]
state law. Mr. Cross is thus entitled to relief from the Court under 42
U.S.C. § 1983.
31. Petitioner accordingly requests that the Court afford the
petitioner such relief as is just and appropriate pursuant to 42 U.S.C. §
1983, including, without limitation:
a) a Wnit of Habeas Corpus pursuant to R.S.A. 534:1 and
534:22 mandating that all such restraints be discharged forthwith;
b) adeclaratory judgment pursuant to R.S.A. 491:22 that Mr.
Cross's conviction and sentence are null and void, and vacating them (or
such portion of the sentence as remains) accordingly; and
c) apreliminary and permanent injunction pursuant to R.S.A.
498:1-2 enjoining continued enforcement of the conviction and any
remainder of the sentence.
WHEREAS, PETITIONER WAYNE F. CROSS PRAYS that the
Court grant him the following relief:
1. A Writ of Habeas Corpus, pursuant to Counts I, I and III;
2. A Declaratory Judgement, pursuant to Counts I, II and I];
3. A Preliminary and Permanent Injunction, pursuant to Counts I, II
and III;
4. Costs and attorneys fees to the fullest extent available under each
of the counts herein, including, without limitation, under 42 U.S.C. § 1988;
and
=
x
Mai MSF se AB OTD A TIN OM ET te,
ei Nhat Aidala nk tis hak son tanta oe ated
A-27
[Reprinted From Original]
5. Such other and further relief as the Court deems just and proper.
WAYNE F. CROSS
By his attorneys,
Mark P. Szpak
ROPES & GRAY
One International Place
Boston, Massachusetts 02110
(617) 951-7606
Dated: July 20, 1992
A-28
[Reprinted From Orginal]
STATEMENT OF SUBMISSION UNDER OATH
I, Wayne F. Cross, hereby certify that I have read the above Petition,
and hereby state, under oath, that the facts set forth therein are true to the
best of my knowledge, information, and belief.
Wayne F. Cross
Wayne F. Cross
Dated: July 13, 1992
[Reprinted From Oniginal]
Form 4
In the case of an inmate's request for disposition under Article III, copies of
this Form should be attached to all copies of Form 2. In case of ar
initiated by a prosecutor this Form should be completed after the Governor
has indicated his approval of the request for temporary custody or after the
expiration of the 30-day period. Copies of this Form should be sent to all
officials who previously received copies of Form 3. One copy also should
be given to the prisoner and one copy should be retained by the warden
Copies mailed to the prosecutor should be sent by certified or registered
mail, return receipt requested.
Agreement on Detainers: Form 4
OFFER TO DELIVER TEMPORARY CUSTODY
Date 11-9-83
TO: Raymond Cloutier —__ Prosecuting Officer
Hillsborough County
(Jurisdiction)
And to all other prosecuting officers of Jurisdictions listed below from
which indictments, informations or complaints are pending.
RE: Wayne Cross Number W-34342
Dear Sir:
Pursuant to the provisions of Article V of the Agreement on
between this state and your state, the undersigned hereby offers
to deliver temporary custody of the above-named prisoner to the
appropriate authority in your state in order that speedy and efficient
Prosecution may be had of the indictment, information or complaint which
A-30
[Reprinted From Original]
is [described in the attached inmate's
request] [XXXXXXXXXXXKXXXXKXKXKX KKK KKK KK KK KKK
p, 0.0.0, %.9.9,,9,0,0,0, 9,9, 4.0.4
(date)
[The required Certificate of Inmate Status is enclosed. }
P.O, 0,0, 0, 0.0.0.0. 0.0.0.0 0.0.0.0. 0.0.0.0.0.0000009000000090000%
XXXXXXXKXKXKKKX]
(date)
If proceedings under Article [V(d) of the Agreement are indicated,
an explanation is attached.
Indictments, informations or complaints charging the following
offenses also are pending against the inmate in your state and you are
hereby authorized to transfer the inmate to custody of appropriate
authorities in these jurisdictions for purposes of disposing of these
indictments, informations or complaints.
Offense County or Other Jurisdiction
If you do not intend to bring the inmate to trial, will you please
inform us as soon as possible? Kindly acknowledge.
‘Box 43. (Institution and address) 43 Main Street
Norfolk, MA 02056
A-31
[Reprinted From Original]
Form 2
Five copies, if only one jurisdiction within the State involved has an
indictment, information or complaint pending. Additional copies will be
necessary for prosecuting officials and clerks of court if obtainers have
been lodged by other jurisdictions within the state involved. One copy
should be retained by the prisoner. One signed copy should be retained by
John M. Safford, Clerk
Hillsborough Superior _ Court
(Jurisdiction)
And to all other prosecuting officers and courts of jurisdictions listed
below from which indictments, informations or complaints are pending.
You are hereby notified that the undersigned is now imprisoned in
A-32
[Reprinted From Original]
and I hereby request that a final disposition be made of the following
indictments, informations or complaints now pending against me:
Failure to take action in accordance with the Agreement on Detainers, to
which your state is committed by law, will result in the invalidation of the
indictments, information or complaints.
I hereby agree that this request will operate as a request for final
disposition of all untried indictments, informations or complaints on the
basis of which detainers have been lodged against me from your state. I
also agree that this request shall be deemed to be my waiver of extradition
with respect to any charge or proceeding contemplated hereby or included
herein, and waiver of extradition to your state to serve any sentence there
imposed upon me, after completion of my term of imprisonment in this
state. I also agree that this request shall constitute a consent by me to the
production of my body in any court where my presence may be required in
order to effectuate the proposes of the Agreement on Detainers and a
further consent voluntarily to be returned to the institution in which I now
am confined.
If jurisdiction over this matter is properly in another agency, court or
officer, please designate the proper agency, court or officer and return this
form to the sender.
The required Certificate of Inmate Status and Offer of Temporary
Custody are attached.
DATED: 11-9-83
Wayne Cross __ W-34342
(Inmate's name and number)
The inmate must indicate below whether he has counsel or wishes
the court to appoint counsel for purposes of any proceedings preliminary to
trial which may take place before his delivery to the jurisdiction in which
the indictment, information or complaint is pending. Failure to list the
name and address of counsel will be construed to indicate the inmate's
A-33
[Reprinted From Original]
consent to the appointment of counsel by the appropriate court in the
receiving state.
A. My counsel is
(name of counsel)
whose address is
(street, city and state)
B. —_I request the court to appoint counsel.
Wayne Cross
(Inmate's signature)
A-34
[Reprinted From Original]
IMPORTANT: This form should only be used when an offer of temporary
custody has been received as the result of a prisoner's request for
disposition of a detainer. If the offer has been received because another
prosecutor in your state has initiated the request, use Form 8. Copies of
Form 7 should be sent to the warden, the prisoner, the other jurisdictions in
your state listed in the offer of temporary custody, and the Agreement
Administrator of the state which has the prisoner incarcerated. Copies
should be retained by the person filing the acceptance and the judge who
signs it.
Agreement on Detainers: Form 7
PROSECUTOR'S ACCEPTANCE OF TEMPORARY CUSTODY
OFFERED IN CONNECTION WITH A PRISONER'S REQUEST FOR
DISPOSITION OF A DETAINER.
In response to your letter of November 9, 1983 and offer of
(Date)
temporary custody regarding _ Wayne Cross __ who is presently
(Name of Prisoner)
under indictment, XXXXXXXXXX in the Hillsborough County of which
(Jurisdiction)
I am Assistant County Attorney _ please be advised that I accept
(Title of Prosecutor Office)
[Reprinted From Original]
temporary custody and that I propose to bring this person to trial on the
indictment, information or complaint named in the offer within the time
specified in Article III(a) of the Agreement of Detainers.
COMMENTS: If your jurisdiction is the only one named in the offer of
temporary custody, use the space below to indicate when you would like to
send your agents to conduct the prisoner to your jurisdiction. If the offer
of temporary custody has been sent to other jurisdictions in your state, use
the space below to make inquiry as to the order in which you will receive
custody, or to indicate any arrangements you have already made with other
jurisdictions in your state in this regard.
Signed: P ;
Paul A. McDonough, Esquire
Title: Assi
I hereby certify that the person whose signature appears above is an
appropriate officer within the meaning of Article IV(a) and that the facts
recited in this request for temporary custody are correct and that having
duly recorded said request I hereby transmit it for action in accordance
with its terms and the provisions of the Agreement on Detainers.
DATED: 12-2-83 Signed:
(Judge)
iteneeiilteaiiiaaiee
(Court)
A-36
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
Hillsborough County Superior Court
STATE vs. .....Wayne F. Cross.............. St. # 83-1456..........
Indictment [X] Waiver [] Information[] Complaint [ ]
ARRAIGNMENT
Date..... November 26, 1984..... Plea..Not Guilty.............
DISPOSITION
Date.....February 8, 1985...... Justice..Arthur E. Bean, Jr..
Plea [ ] Jury Verdict [X] Court Order [ ]
Finding: Guilty [X] Not Guilty [ ] Other [ ]
SENTENCE: The defendant is sentenced to not more than 15 years nor
less than 7 1/2 years at the N.H. State Prison with 420 days of pre-trial
confinement credit. Stand committed. There is added to the minimum
sentence a disciplinary period equal to 150 days for each year of the
minimum term of defendant's sentence, to be pro-rated for any part of the
year. R.S.A. 651:2, I-e.
Date... February 8, 1985....... John M. Safford....Clerk
MITTIMUS
The Sheriff of Hillsborough County is hereby ordered to deliver:
to: [X] New Hampshire State Prison, Concord, New Hampshire
[ ] Hillsborough County House of Correction
Goffstown, New Hampshire
in accordance with said sentence.
Attest:
...John M. Safford....Clerk
A-37
[Reprinted From Original]
RETURN
Goffstown, New Hampshire
and gave the
[X] warden
[ ] superintendent
a copy of this order.
es 6 ee ee [NAME]...... Deputy Sheriff
Copies:
Department of Safety County Attorney
Probation Department Jailer
Sentence Review Division
A-38
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
Hillsborough County Superior Court
STATE vs. ..Wayne F. Cross.............. St. # 83-1457..........
Indictment [X] Waiver[] Information [] Complaint [ ]
ARRAIGNMENT
Date..... November 26, 1984....._ Plea.. Not Guilty.............
DISPOSITION
Date.....February 8, 1985...... Justice..Arthur E. Bean, Jr..
Plea [ ] Jury Verdict [X] Court Order [ ]
Finding: Guilty [X] Not Guilty [ ] Other [ ]
SENTENCE: The defendant is sentenced to not more than 15 years nor
less than 7 1/2 years at the N.H. State Prison with 420 days of pre-trial
confinement credit. Stand committed. This sentence to run consecutive to
that imposed on 83-1456. There is added to the minimum sentence a
disciplinary period equal to 150 days for each year of the minimum term of
defendant's sentence, to be pro-rated for any part of the year. R.S.A.
651:2, I-e.
Date...February 8, 1985....... ...John M. Safford....Clerk
MITTIMUS
The Sheriff of Hillsborough County is hereby ordered to deliver:
to: [X] New Hampshire State Prison, Concord, New Hampshire
[ ] Hillsborough County House of Correction
Goffstown, New Hampshire
in accordance with said sentence.
Attest:
...John M. Safford....Clerk
[Reprinted From Original]
RETURN
Goffstown, New Hampshire
and gave the
[X] warden
[ ] superintendent
a copy of this order.
oe re [NAME]...... Deputy Sheriff
Copies:
Department of Safety County Attorney
Probation Department Jailer
Sentence Review Division
A-40
[Reprinted From Onginal]
PUBLIC DEFENDER PROGRAM
NEW HAMPSHIRE LEGAL ASSISTANCE
315 Pine Street
Manchester, New Hampshire 03101
Tel. (603) 669-7888
February 20, 1985
Mr. Paul McDonough
Assistant County Attorney
300 Chestnut St.
Manchester, NH 03101
Re: Wayne Cross
Dear Paul:
This is to confirm our conversation yesterday that you intend to hold,
in New Hampshire, Mr. Cross pending the outcome of his forthcoming
appeal to the Supreme Court.
If there is a change in your decision please contact me.
Sincerely,
Gary S. Lenehan
Public Defender
GSL/dr
A-4]1
{Reprinted From Original]
CLIENT'S COPY
SCHWARTZ & SHAW
ATTORNEYS AT LAW
240 COMMERCIAL STREET
BOSTON, MASSACHUSETTS 02109
HARVEY A. SCHWARTZ (617) 227-2414
PAUL W. SHAW
March 6, 1985
Paul A. McDonough
Hillsborough County
District Attorney's Office
300 Chestnut Street
Manchester, NH 03101
Re: Wayne F. Cross
Dear Mr. McDonough:
I represent Wayne F. Cross in connection with a number of matters
that are pending in the Middlesex Superior Court in Cambridge, MA.
During the fall of 1983, Mr. Cross was transferred to New Hampshire for
trial on certain other charges pursuant to the Interstate Agreement on
Detainers. I have been informed by Mr. Cross that he has been convicted
and sentenced on each of those charges but is still being detained in New
Hampshire.
I would address your attention to Article V(d) of the Agreement
which provides that the temporary custody of Mr. Cross granted to New
Hampshire only applied for the purpose of trying an indictment or
complaint. As the trial has been completed, New Hampshire no longer can
A-42
[Reprinted From Original]
prejudiced in his defense as a result of a number of potential witnesses
having left the area without providing forwarding addresses. As a result, |
am formally demanding that Mr. Cross be released into the custody of the
Massachusetts Department of Corrections so that he can be returned to this
state for trial in Cambridge, MA.
Very truly yours,
Paul W. Shaw
PWS/laa
cc: Wayne F. Cross
Gary Lenehan
Hillsborough County
Public Defenders
315 Pine Street
Manchester, MA 03101
General Counsel
Massachusetts Department of Corrections
100 Cambridge Street
Boston, MA 02202
A-43
[Reprinted From Original]
SEE INSTRUCTIONS ON REVERSE SIDE
INMATE REQUEST SLIP
DATE _ 8/19/85
1 TO: Joseph Wherale _
FROM: CROSS WAYNE ___
Last Name First Name
Middle Initial
Inmate's Signature
2 THRU CUSTODY -- Canary copy for delivery to inmate -- White
copy to Classification for file. DATE_ 8/19/85
TO: INMATE _Cross DIVISION__ CELL#_7
FROM: Offender Records _
A-44
(Reprinted From Original]
REMARKS: The County Attorney was keeping you in NH until
your appeal was completed.
action
Staff Signature
3 ACKNOWLEDGEMENT--Inmate retain Canary copy with reply.
DATE_8/19/85
___ Wayne Cross __
Inmate's Signature
4 TO CLASSIFICATION FOR FILE--White copy
REVISED 12/15/79
CC 039
A-45
[Reprinted From Original]
Form 5
Five copies. Signed copies must be sent to the prisoner and to the
official who has the prisoner in custody. A copy should be sent to
the Agreement Administrator or the state which has the prisoner
incarcerated. Copies should be retained by the person filing the
request and the judge who signs the request.
Agreement on Detainers: Form 5
Please be advised that _Wayne Cross _ who is presently an
inmate of your institution, is under [indictment] [*******] in
the Middlesex County of which I am the __District Attorney _
(Jurisdiction) (Title of Prosecuting Officer)
Said inmate is therein charged with the [****] [offenses] enumerated
below:
A-46
[Reprinted From Original]
I propose to bring this person to trial on this [indictment]
[********) [******) Within the time specified in Article IV(c) of
the Agreement.
In order that proceedings in this matter may be properly had,
I hereby request temporary custody of such persons pursuant to
Article [V(a) of the Agreement on Detainers.
Signed [Name]
Title __ District Attorney _
I hereby certify that the person whose signature appears
above is an appropriate officer within the meaning of Article IV(a)
and that the facts recited in this request for temporary custody are
correct and that having duly recorded said request I hereby transmit
it for action in accordance with its terms and the provisions of the
Agreement on Detainers.
Dated: _March 11, 1986 Signed [Name]
(Judge)
Middl eesior (
(Court)
A-47
[Reprinted From Original]
FORM 6
Quadruplicate, all copies, signed by the prosecutor and the agent
should be to the Administrator in the receiving state. After signing
all copies, the Administrator should retain one for his files, send one
to the warden of the institution in which the prisoner is located, and
return two copies to the prosecutor who will give one to the agent
for use in establishing his authority and place one in his files.
AGREEMENT ON DETAINERS, FORM 6
RECEIVING STATE
Michael Fai
(Administrator of the Agreement on Detainers)
Wayne Cross _ is confined in New Hampshire
i ire, and will be
(institution and address)
returned to this jurisdiction for trial on April 4, 1986
(date and approx hour)
in accordance with Article V(b), I have designated any of the
whose signature appears below as
(agent)
agent to return the prisoner.
—{Name] Byme
—George L. Foley ___
Scott Harshbarger
—loseph M. Jawlise ++ Scott Harshbarger
—Donald MacPhee _____—_District Attorney
(agent's signature) Middlesex County
A-48
{Reprinted From Original]
TO: WARDEN
In accordance with the above representation and the
provisions of the Agreement of Detainers, any of the abovenamed
(agent)
are hereby designated as agent for this state to return,
Wayne Cross ___ for trial.
(inmate)
[Name]
(Administrator)
[Reprinted From Original]
CLIENT'S COPY
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE
DISTRICT ATTORNEY FOR MIDDLESEX COUNTY
CAMBRIDGE 02141
SCOTT HARSHBARGER
DISTRICT ATTORNEY
494-4050
April 30, 1986.
Paul Shaw, Esquire
240 Commercial Street
Boston, MA 02109
Re: Wayne Cross
Dear Paul,
Per my conversation please find a xerox copy of
correspondence relative to the abovenamed individual. As I
indicated to you the attached was sent Express Mail on March 18,
1986.
Mr. Whirle of the New Hampshire State Prison informed me
that he is being held pending an appeal out of Hillsborough County
Superior Court in Manchester, New Hampshire.
Thank you for your help in this matter of mutual concern. If
you have any questions, please feel free to call me.
Very truly yours,
Leo T. Kennedy
Indictment Clerk to
the Grand Jury
A-50
[Reprinted From Original]
/mat
Attachment
CC: File
Christine McEvoy, Assistant District Attorney
Massachusetts State Police
[Reprinted From Original]
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE
DISTRICT ATTORNEY FOR MIDDLESEX COUNTY
CAMBRIDGE 02141
SCOTT HARSHBARGER
DISTRICT ATTORNEY
494-4050
March 18, 1986.
Michael Cunningham
Warden
New Hampshire State Prison
Box 14
Concord, New Hampshire 03301
Re: Wayne Cross
Dear Mr. Cunningham:
Attached please find the original form #5 and a xerox of form
#6 of the Interstate Agreement on Detainers.
As is indicated on the forms, officers of the Massachusetts
State Police will take custody of Mr. Cross within the next 3 weeks,
if all the paperwork is in order. Please advise if Mr. Cross is going
to appeal the Interstate Compact. If not the agents designated will
take custody of Mr. Cross on or about April 4, 1986 and they will
have the original form #6 with them at that time.
A-52
[Reprinted From Original]
_ Thank you for your help in this matter of mutual concern. If
you have any questions please feel free to call me.
Very truly yours,
Leo T. Kennedy
Indictment Clerk
to the Grand Jury
1-617-494-4091
/mat
cc: File
ADA Chris McEvoy
Massachusetts State Police
A-53
[Reprinted From Original]
CLIENT'S COPY Schwartz, Shaw and Griffith
Attorneys at Law
June 24, 1986
Paul A. McDonough
Hillsborough County
District Attorney's Office
300 Chestnut Street
Manchester, NH 03101
Re: Wayne F. Cross
Dear Mr. McDonough:
As you may recall, I represent Wayne Cross in connection
with a number of indictments that are pending against him in
Middlesex Superior Court in Cambridge, Massachusetts that arise
out of an incident that took place in January 1983. Mr. Cross has
attempted to arrange of this transfer back to Massachusetts to plea to
these charges but to date nothing has occurred. I have personally
spoken to Mr. Cross on the telephone, and he is willing to sign
whatever waivers are required to effect his transfer to Massachusetts
authorities. Indeed, I am aware that the Middlesex County District
Attorney's Office has sent the necessary papers pursuant to the
Interstate Agreement on Detainers to have correctional Officials take
custody of Mr. Cross.
I would appreciate your drafting the necessary paperwork to
allow Mr. Cross to be transferred. If you could send the original to
Mr. Cross with a copy to me, I can then review the material and have
A-54
(Reprinted From Original]
Mr. Cross execute it. If you have any questions, please do not
hesitate to contact me.
Very truly yours,
Paul W. Shaw
cc: Wayne F. Cross
P.O. Box 14
Concord, NH 03301
205 Portland Street
Boston, Massachusetts 02114
617 227 2414
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS. SEPTEMBER TERM, 1986
SUPERIOR COURT
THE STATE OF NEW HAMPSHIRE
VS.
WAYNE CROSS
MOTION TO RETURN
COMES NOW the Defendant, by and through counsel, and
moves this Honorable Court to order his return to the
Commonwealth of Massachusetts.
AS GROUNDS for this Motion, the Defendant states as
follows:
1. The Defendant was convicted of armed robbery (2
counts) after a trial by jury.
2. The Defendant was sentenced by the Honorable Justice
Bean to a period of incarceration of not more than thirty (30) years
nor less than fifteen (15) years at the New Hampshire State Prison.
3. The Defendant was held pretrial in the State of New
Hampshire as he had waived rights under the interstate agreement on
detainers prior to being transferred to this State while a prisoner in
the Commonwealth of Massachusetts.
4. The Defendant's case has been completed and pursuant
to the interstate agreement on detainers he should be returned to the
sending State, the Commonwealth of Massachusetts.
A-56
(Reprinted From Original]
5. | The Defendant has pending charges in the
Commonwealth of Massachusetts and wishes to resolve those
charges as expeditiously as possible.
6. The Defendant has complied with all mandates as
required under the interstate agreement on detainers and his return to
Massachusetts should be expedited for a resolution of pending
charges in that jurisdiction.
7. A hearing on this Motion is requested.
WHEREFORE, the Defendant prays his Motion be granted
and that he be transferred to the Commonwealth of Massachusetts
forthwith.
Respectfully submitted,
Wayne Cross,
By his Attorneys,
BRENNAN PROFESSIONAL ASSOCIATION
DATED: October 28, 1986 By:___Gary S. Lenehan
Gary S. Lenehan, Esquire
51 High Street
Manchester, NH 03101
(603) 668-8300
I HEREBY CERTIFY that a copy of the within Motion has
been mailed this day to Paul McDonough, Esquire, Hillsborough
County Attorneys Office.
___Gary §. Lenehan ___
Gary S. Lenehan, Esquire
A-57
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS. SEPTEMBER TERM, 1986
ST. NO. SUPERIOR COURT
THE STATE OF NEW HAMPSHIRE
V.
WAYNE CROSS
OBJECTION TO DEFENDANT'S MOTION TO RETURN
NOW COMES the State of New Hampshire by and through
the Hillsborough County Attorney's Office, and objects to
defendant's Motion to Return, and alleges as follows:
1. The State objects to the return of the defendant without
his specific waiver that he would agree to be returned to the State of
New Hampshire for trial if this appeal presently pending in the
Supreme Court results in a new trial being ordered.
WHEREFORE, the State of New Hampshire respectfully
prays this Honorable Court:
1. To deny the defendant's Motion for Return;
2. An for such other and further relief as may be just and
proper.
DATED: October 31, 1986 Respectfully submitted,
——Paul A. McDonough __
Paul A. McDonough, Esquire
Assistant County Attorney
A-58
[Reprinted From Original]
I hereby certify that a copy of the within Objection has been
forwarded to Gary Lenehan, Esquire, on this 31st day of October,
1986.
Paul A. McDonough, Esquire
Assistant County Attorney
[Reprinted From Original]
Clerk of Superior Court
Hillsborough County
JOHN M. SAFFORD, CLERK 300 CHESTNUT STREET
WILLIAM S. McGRAW, MANCHESTER, N.H.
DEPUTY CLERK 03101
BARBARA SABIN-BROWN,
DEPUTY CLERK
JAMES M. WARREN, MANCHESTER NASHUA AREA
DEPUTY CLERK 669-7410 494-8091
DEPUTY CLERKS
GERTRUDE Y. RUF
MONA BERGERON
December 23, 1986
St. 83-1456-7 State v Wayne F. Cross
Paul M. Gagnon, Esq.
County Attorney
Manchester, N.H.
Gary Lenehan, Esq.
51 High Street
Manchester, N.H.
Gentlemen:
In the above entitled actions the Court (Justice Dunn) has
made the following order on the Motion to Return:
[Reprinted From Original]
"December 22, 1986 Motion is moot."
Very truly yours,
Clerk of Superior Court
IMS/j
A-61
[Reprinted From Original]
ATTACHMENT I
State of New Hampshire
DEPARTMENT OF CORRECTIONS
OFFICE OF THE COMMISSIONER
P.O. Box 769
Concord, NH 03301
603/224-3500
Ronald L. Powell, Ph.D
Commissioner
John H. Sununu N_E. Pishon
Governor Assistant
December 18, 1987
Superintendent Norman Butler
Massachusetts Correctional Institution
PO Box 43
Norfolk, Massachusetts 02056
RE: Cross, Wayne F.
NHSP #15114
Dear Superintendent Butler:
On February 8, 1985, the above named subject appeared in the
Hillsborough County Superior Court, Manchester, New Hampshire, on two
charges of Robbery. At that time subject received two 71 to 15 year
consecutive sentences, said sentences to be served concurrently with the
sentence he is presently serving in Massachusetts. It is unclear whether or
not at that time a copy of the mittimus was forwarded to the State of
Massachusetts to be lodged as a detainer against his release from his
Massachusetts sentence. ] am therefore, enclosing a copy of subject's
A-62
[Reprinted From Original]
mittimus to be loedged as a detainer against his release together with a
copy of his time sheet. We would appreciate any information you can
provide concerning subject's sentences in the State of Massachusetts and
his current projected release date.
Should there be any questions concerning the above, please feel free to
contact me. Thank you for your cooperation in this matter.
Sincerely,
Mary E. Keniston
Deputy Compact Admunistrator
cc/Offender Records
file
MEK/mw
A-63
[Reprinted From Original]
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[Reprinted From Original]
SEE INSTRUCTIONS ON REVERSE SIDE
INMATE REQUEST SLIP
DATE 3/27/85.
] TO: JUDY MARUFFI
FROM:__CROSS_ ss __ WAYNE _
Last Name First Name Middle Initial
S.hu._] 7
Division Cell Number Work Detail or School Assignment
Inmate's Signature
A-65
[Reprinted From Original]
2 THRU CUSTODY -- Canary copy for delivery to inmate -- White copy
to Classification for file. DATE__3-29-85
TO: INMATE_Wayne Cross_ Division]. CELL #_7_
FROM: Education
REMARKS: No courses in electrical wiring
science, art
Staff Signature
3 ACKNOWLEDGEMENT -- Inmate retain Canary copy with reply.
DATE,
_— i: ioe
Inmate's Signature
4 TO CLASSIFICATION FOR FILE -- White copy
REVISED 12/15/79
CC 039
A-66
[Reprinted From Original]
THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
NORTHERN DISTRICT OF DOCKET NO.
HILLSBOROUGH COUNTY 92-E-00562
WAYNE F. CROSS
v.
MICHAEL CUNNINGHAM,
WARDEN OF THE NEW HAMPSHIRE STATE PRISON,
SUPPLEMENTAL AFFIDAVIT OF WAYNE F. CROSS
I, Wayne F. Cross, hereby depose and say as follows:
1. Iam approximately 400 hours short of the credit hours of
experience necessary to obtain my Massachusetts journeyman's license to
work as an electrician.
2. As an inmate at MCI-Norfolk, where I was able to work as an
electrician to acquire these hours toward a Massachusetts license, 400
credit hours of experience would have taken me only approximately four
months to earn.
I hereby state, under oath, that the foregoing is true and correct
based on my own personal knowledge.
__Wayne F. Cross__
Wayne F. Cross
Dated: November 18, 1992
MPSSUPAF.CW
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.