Petition for Writ of Certiorari — Bogue v. Pennsylvania

: 4 Supreme Court, U.g,

—S FILED

00 467 SEP 25 2000

No. 00-

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ROBERT BOGUE,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

PETITION FOR A WRIT OF CERTIORARI

Burton A. ROSE

Attorney for Petitioner

Washington West Building

235 South 8" Street

Philadelphia, PA 19106

(215) 925-5800

162411 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

I. Was your Petitioner deprived of his federal constitutional

rights to due process of law and a speedy trial in view of

_ the willful failure of Florida to comply with the

applicable provisions of the Interstate Agreement and

Detainers Act?

II. Do the provisions of the Interstate Agreement on

Detainers Act apply to a detainer arising from the

Petitioner’s open sentencing matter in the state of |

Florida?

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TABLE OF CONTENTS

Page

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Table of Cited AmIROTHIO® ... 6. ccc vesuceses ill

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Statement Of Jurisdiction ..... ccc ccc ccesesees ]

Constitutional and Statutory Provisions ......... l

Statement Of the Case .....cccccsecvessesecscs 2

Reasons for Granting the Writ ................. 6

Petitioner’s Federal Constitutional Rights

Have Been Abridged By The Orders Of

The Pennsylvania Courts Requiring

Your Petitioner To Be _ Extradited

To Florida In Violation Of His Rights Of Due

Process And Speedy Trial In View

Of Florida’s Willful Failure To Comply With

The Interstate Agreement On Detainers Act.

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TABLE OF CITED AUTHORITIES

Page

Cases:

Bogue v. Fennely, 505 So. 2d 575 (1997) ........ +

Burkett v. Cunningham, 826 F.2d 1208 (1987) .... 10

California v. Superior Court, 482 U.S. 400 (1987) a 9

Carchman v. Nash, 473 U.S. 716 (1985) heh eae ae 7,9

Cuyler v. Adams, 449 U.S. 433 (1981) .......... 8

Hall vy. Florida, 678 F. Supp. 858 (N.D. Fla. 1987) .. 10

Michigan v. Doran, 439 U.S. 282 (1978) ........ 7

Mitcheil v. United States, 119 S. Ct. 1307 (1999) ... 9

New Mexico ex rel. Ortiz v. Reed, 118 S. Ct. 1860

EE ae ee Serr ae

Tinghitella v. California, 718 F.2d 308 (9" Cir.

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iv

Cited Authorities

Page

Statutes:

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Florida Statute § 893.135(1)(b) ............005. —-

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Florsda Statute § 9401.45 .. ww. cen ccccecscceas 4

Rule:

United States Supreme Court Rule 13(3) ........ l

United States Constitution:

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Pe as SE | x vk eS h e oS iad cuwe es l

ff PP ee Ee ee eee TET Te rere Teer 10

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TABLE OF APPENDICES

Appendix A — Memorandum And Judgment Of The

Superior Court Of Pennsylvania Dated And Filed

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Appendix B — Opinion Of The Court Of Common

Pleas Of Montgomery County, Pennsylvania,

Criminal Division Dated April 26, 1996 .......

Appendix C — Per Curiam Order Of The Supreme

Court Of Pennsylvania For The Middle District

Denying Petition For Allowance Of Appeal Dated

PETE EER ET eee er ee

. PORE TOIT ORE EL SIL LY LATE TELL TAA ID CDN L IEE ARATE PROP 5 IRE INI RTE UTE IIHR ONEROUS RE AER,

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OPINIONS BELOW

Annexed hereto as Appendix A is a copy of the Judgment

and Memorandum Opinion of the Pennsylvania Superior

Court dated December 21, 1999, affirming the lower court.

Annexed hereto as Appendix B is a copy of the Opinion of

the Court of Common Pleas of Montgomery County

dated April 26, 1996, denying the Petition for a Writ of

Habeas Corpus. Finally, annexed hereto as Appendix C is a

copy of the Order of June 26, 2000 in which the Supreme

Court of Pennsylvania denied the Petition for Allowance

of Appeal.

STATEMENT OF JURISDICTION

The Petitioner is asking this Court to review federal

questions decided by the appellate courts of the

Commonwealth of Pennsylvania. On June 26, 2000, the

Supreme Court of Pennsylvania denied the Petitioner’s

Petition for Allowance of Appeal seeking review of a

decision of the Superior Court of Pennsylvania dated

December 21, 1999.

Therefore, this Petitioner is being timely filed within

ninety days as permitted by Rule 13(3) and this Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

This case involves the Extradition Clause found in

Article IV, Clause 2 of the United States Constitution.

This Clause provides that a person charged in any state with

treason,-felony or other crime, who shall flee from justice,

2

and be found in another state, shall on demand of the

executive authority of the state from which he fled, be

delivered up, to be removed to the state having jurisdiction

of the crime.

This provision is implemented by the Uniform Criminal

Extradition Act and the Interstate Agreement on Detainers

Act, 42 Pa. C.S. § 9101.

STATEMENT OF THE CASE

Your Petitioner is Robert Bogue, who was arrested in

Martin County, Florida on March 1, 1981 and charged with

Trafficking in Cocaine in violation of Florida Statute

§ 893.135(1)(b) and engaging in a criminal offense while in

a possession of a weapon, in violation of Florida Statute

§ 790.07.

The Petitioner pled guilty to these offenses on September

23, 1981. He failed to appear as required for sentencing on

December 22, 1982.

On June 27, 1989, the Petitioner was arrested in

Pennsylvania and charged with Possession With Attempt To

Deliver Marijuana. On June 30, 1989, the Petitioner was also

charged with being a fugitive from the state of Florida based

upon his having failed to appear for sentencing in December

of 1982.

On July 7, 1989, the District Attorney’s Office of

Montgomery County, Pennsylvania, advised the Martin

County, Florida, State Attorney’s Office to begin extradition

proceedings against the Petitioner. However, the state of

Florida failed to comply with that request.

Pe Oe ee ee ey . sain

3

On January 14, 1991, your Petitioner was sentenced in

the Court of Common Pleas of Montgomery County on the

marijuana distribution charge to a term of not less than

5 1/2 nor more than 11 years imprisonment.

The Petitioner was also awaiting sentencing on a

federal case arising in Arizona, United States v. Robert

Bogue, et al. In May of 1994, that Court sentenced the

Petitioner to a term of 4 years in custody, said sentence to

run concurrent with the aforementioned Pennsylvania state

sentence.

On September 26, 1994, your Petitioner requested final

disposition by the state of Florida pursuant to the Interstate

Agreement on Detainers Act, Florida Statute § 941.45.

In that regard, the Petitioner submitted a formal written notice

and request for final disposition, as did his Florida counsel.

Accordingly and in response thereto, the Pennsylvania

Department of Corrections sent the appropriate documents

consistent with that request to the Office of the State Attorney

as well as to the Circuit Court of Martin County Florida.

The Petitioner’s request for prompt disposition of the

outstanding Florida charges under the Interstate Agreement

On Detainers Act was partly motivated by his desire to seek

a concurrent sentence, as he had obtained from the federal

authorities in Arizona, based upon his extensive and

substantial cooperation with a federal drug investigation.

Notwithstanding this cooperation, Petitioner’s Florida

counsel was advised by the Assistant State Attorney for

Martin County Florida that the State of Florida was not going

to take any action or make any effort to transfer your

Petitioner to Florida for sentencing until after the Petitioner

had completed serving all of his sentences. Thus, the State

4

of Florida made no attempt to comply with Petitioner’s

repeated request for a transfer back to Florida so that he might

find closure as to those criminal charges.

On April 9, 1996, your Petitioner moved to dismiss the

detainer, for the failure to provide him with a speedy trial

and due process of law, in the Circuit Court of the Ninteenth

Judicial Circuit in and for Mai.in County, Florida. By Order

dated May 5, 1996, that Court denied Petitioner’s Motion

To Dismiss without a hearing primarily because the Court

took the position that the detainer lodged against the

Petitioner by the State of Florida did not put him within the

class of protected individuals under the Act since the detainer

was not based upon “any untried indictment, information or

complaint”; Florida Statute § 9401.45.

After the denial of a motion for reconsideration, the

Petitioner filed a Petition for a Writ of Prohibition to the

Fourth District Court of Appeals in Florida, petitioning that

appellate court to prohibit the state trial judge from

proceeding further in the case and requesting Petitioner’s

discharge.

On August 28, 1997, the Fourth District Court of Appeals

filed an Opinion dismissing his Petition. See Bogue v.

Fennely, 505 So. 2d 575 (1997). Unfortunately, there was

no jurisdiction at this time to invoke the discretionary review

of the Supreme Court of Florida.

On May 27, 1998, the Petitioner’s Florida counsel filed

a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254 with the United States District Court for the Southern

District of Florida, as per case number 98-14143.

That Petition is still pending before a United States

Magistrate Judge in that Court.

5

On June 16, 1998, the Petitioner was arrested as he was

being released from custody in Pennsylvania from the service

of the aforementioned sentence imposed by the Court of

Common Pleas of Montgomery County. The Petitioner was

thereupon charged once again with being a fugitive from

justice from Florida, as officials from Martin County, Florida,

had filed a criminal complaint against him under 42 Pa. C.S.

§ 9121, being the Uniform Criminal Extradition Act.

On June 30, 1998, the Petitioner’s Pennsylvania counsel

filed an application for a Writ of Habeas Corpus with the

Court of Common Pleas of Montgomery County as per

Docket No. 3578-98. An evidentiary hearing was held before

the lower court on November 30, 1998. By Memorand “A”

attached hereto, that Court ordered that the Petitioner’s

request for relief was denied and that he was to be extradited

to the State of Florida. However, that Court also granted a

subsequent application submitted on behalf of the Petitioner

seeking a stay of the extradition Order pending the outcome

of an appeal.

a”

On May 6, 1999, a Notice of Appeal was duly filed to

the Superior Court of Pennsylvania as per No. 1375 EDA

1999. On December 21, 1999, a Panel of the Superior Court

of Pennsylvania filed a Judgment and Memorandum Opinion

affirming the Order of the Court of Common Pleas of

Montgomery County ordering your Petitioner’s extradition

to Florida. A true and correct copy of same is attached hereto

as Exhibit “B”.

On January 19, 2000, the Petitioner filed a Petition for

Allowance of Appeal with the Supreme Court of

Pennsylvania seeking discretionary review of the ruling of

the Superior Court. However, by Order dated June 26, 2000,

a true and correct copy which is annexed hereto as Exhibit

“C”, that Court declined to accept review of this case.

6

REASONS FOR GRANTING THE WRIT _

PETITIONER’S FEDERAL CONSTITUTIONAL

RIGHTS HAVE BEEN ABRIDGED BY THE ORDERS

OF THE PENNSYLVANIA COURTS REQUIRING

YOUR PETITIONER TO BE EXTRADITED

TO FLORIDA IN VIOLATION OF HIS RIGHTS OF

DUE PROCESS AND SPEEDY TRIAL IN VIEW

OF FLORIDA’S WILLFUL FAILURE TO COMPLY

WITH THE INTERSTATE AGREEMENT ON

DETAINERS ACT.

The Petitioner respectfully submits that the State of

Florida has been wrongfully given another opportunity to

extradite the Petitioner from Pennsylvania where the record

is Clear that the State of Florida has willfully failed to comply

in the past with the mandatory provisions of the Interstate

Agreement on Detainers Act.

This Act, found in Pennsylvania at 42 Pa. C.S. § 9101,

provides an Article III(a) that a demanding state has

180 days to respond after a prisoner makes a formal request

for final disposition of his charges. In the present case, on

September 26, 1994, a formal request for final disposition

was submitted on the Petitioner’s behalf by himself and by

his Florida counsel. Nevertheless, Petitioner’s Florida’s

counsel was advised by the State’s Attorney that the State

of Florida was determined not to bring the Petitioner back

until after he had completed serving all of his outstanding

sentences, thereby effectively depriving the Petitioner of the

opportunity to gain the benefit of an argument that he was

entitled to a concurrent sentence (as he had already received

in 1994 from a federal court in Arizona, based upon his

substantial assistance to federal authorities).

7

As a result of Florida’s arbitrary and willful refusal to

timely pursue the Petitioner’s extradition (since 1989),

the remedy provided by the Act would be dismissal of the

charges. Carchman v. Nash, 473 U.S. 716 (1985).

In response to this contention, however, the state courts of

Pennsylvania have held that under this Court’s decision in

New Mexico ex rel. Ortiz v. Reed, 118 S. Ct. 1860 (1998),

the courts of that asylum state could not entertain Petitioner’s

legal challenges.

Your Petitioner respectfully urges this Honorable Court

to grant this Petition for a Writ of Certiorari because this

Court’s previous ruling in Reed, supra, must be construed

in such a way as to provide a remedy for persons in the

position of this Petitioner whose substantial federal

constitutional rights have been unfairly denied by the conduct

of the demanding state.

As this Court stated in Michigan v. Doran, 439 U.S. 282

(1978), the purpose of the Extradition Clause is to “preclude

any state from becoming a sanctuary for fugitives of justice

from another state . . .”. as well as to prevent any division of

the criminal justice system among the states. The Court

further stated that the intent of the Clause was to enable

each state “. . . to bring offenders to trial as swiftly as possible

in the state where the alleged offense was committed”.

Id. at 287. In this Court’s decision in Reed, supra, this Court

refused to allow litigation in the courts of the asylum state

concerning the prisoner’s claim that he might be subject to

abuse in the prison of the demanding state, should he be

returned to that state as requested. This Court ruled that issues

relating to what had happened in the demanding state, and

what could be expected to happen to the fugitive when he

returned, should be left for the courts of the demanding state

to determine. 118 S. Ct. at 1861.

8

In the instant case however, your Petitioner has not

requested the courts of the asylum state to litigate issues

that are open to him to try in the demanding state.'

Furthermore, the Petitioner has not requested that the

Pennsylvania Courts decide any factual issues regarding

mitigation of his situation in Florida, but rather has only

asked that the provisions of the IAD be enforced in the

asylum state’s courts.

The Interstate Agreement on Detainers Act is a federal

law subject to federal construction. Cuyler v. Adams, 449

U.S. 433, 442 (1981). The purpose of the Act is to encourage

the expeditious and orderly disposition of outstanding

charges, United States v. Mauro, 436 U.S. 340, 343 (1978).

Surely the provisions of the Act need to be enforced in a

case where the demanding state has willfully and capriciousiy

refused to follow the procedures under the Act and has

allowed the Petitioner to sit and rot in a Pennsylvania prison

until his federal and Pennsylvania sentences are served,

before it will comply.

Even under the standards promulgated in Reed, supra,

extradition would not have been appropriate in this case

because the Petitioner is not, in the true sense of the term, a

“fugitive” at this time. While it is true that the Petitioner

was at one time a “fugitive” in that he failed to appear for

sentencing in Florida in 1982, that status ended when he

became a person in the custody of the asylum state in 1989.

At the very least, it is clear that the Petitioner was no longer

a “fugitive” at the time he invoked his request for transfer to

Florida under the Interstate Agreement on Detainers Act

in 1994.

1. The Petitioner notes that his request for from relief from the

detainer under the IAD has been rejected by the Florida state courts.

9

As Mr. Justice Stevens stated in his dissenting Opinion

in California v. Superior Court, 482 U.S. 400, 419 (1987),

To be a fugitive from justice, it is necessary that

having within a state committed that which by its

laws constitutes a crime, when he is sought to

be subjected to its criminal process to answer

for his offense, he has left its jurisdiction and is

found within the territory of another.

By 1994, the Petitioner was clearly no longer a “fugitive

from justice” and Pennsylvania was certainly not

“a sanctuary” or “haven” for the Petitioner’s refuge from

the state of Florida as he had clearly evidenced his

willingness to be transferred back to that state to answer to

the charges.

Finally, the Petitioner respectfully submits that

notwithstanding this Court’s decision in Carchman vy. Nash,

supra, (holding that the provisions of the Interstate

Agreement of Detainers Act do not apply to a detainer arising

from a violation of probation), a detainer arising from an

open sentencing matter does piace the Petitioner within the

class of protected individuals under the Act.

Unlike a violation of probation proceeding where the

prisoner is not necessarily accused of having committed a

criminal offense, the sentencing proceeding is actually part

of the “trial” itself so that the Petitioner can fairly argue to

the Court that he is still an “untried” prisoner. As this Court

recently made clear in Mitchell v. United States, 119 S. Ct.

1307 (1999), “to maintain that sentencing proceedings are

not part of any criminal case is contrary to the law and

common sense”. 119 S. Ct. at 1314. Accordingly, this Court

10

held based upon that reasoning that it would accord the

privilege against self incrimination the same protection in a

sentencing phase as it would at a trial.

The United States Court of Appeals for the Third Circuit

held in Burkett v. Cunningham, 826 F.2d 1208 (1987), that a

sentencing is part of a trial for the purposes of the right to a

speedy trial under the Sixth Amendment. As Chief Judge

Becker of the Third Circuit stated, the right to a speedy trial

continues until it is determined for how long the accused

should be incarcerated.

In Tinghitella v. California, 718 F.2d 308 (9" Cir. 1983)

and Hall v. Florida, 678 F. Supp. 858 (N.D. Fla. 1987),

it was held that the Interstate Agreement on Detainers Act

does apply to a detainer arising from an open sentencing

matter on the ground that the term “trial” does in fact include

the sentencing phase of criminal case. In Article IX, it is

stated that the Act is to be “liberally construed”. In this case,

the Act should be construed so that it will be enforced,

notwithstanding the Uniform Criminai Extradition Act. Here,

the State of Florida has willfully chosen to ignore the

requirements of the IAD and has purposely caused your

Petitioner to be detained for an extended period of time in

the asylum state, thus leaving your Petitioner in a state of

great anxiety and uncertainty about the future of his case in

that jurisdiction. This is just the sort of uncertainty and

anxiety that the Act was intended to prevent.

Accordingly, your Petitioner Robert Bogue respectfully

invokes this Court’s jurisdiction and prays that the Supreme

Court of the United States accept this matter for further

review so that his federal constitutional rights to due process

of law and to a speedy trial should not be further abridged.

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1]

CONCLUSION

Your Petitioner Robert Bogue respectfully requests this

Honorable Court to act in the interests of fundamental

fairness and justice and grant this Petition.

Respectfully submitted,

Burton A. ROSE

Attorney for Petitioner

Washington West Building

235 South 8" Street

Philadelphia, PA 19106

(215) 925-5800