United States v. John Wesley Tootle, Jr. , 65 F.3d 381 ( 1995 )

Vacated and remanded by published opinion. Judge HAMILTON wrote the opinion, in which Judge NIEMEYER joined. Judge NIEMEYER also wrote a separate concurring opinion. Judge DIANA GRIBBON MOTZ wrote a separate opinion concurring in the judgment.

OPINION

HAMILTON, Circuit Judge:

The government appeals the district court’s dismissal of a two-count indictment against John Tootle (Tootle) with prejudice for violation of Tootle’s rights under the Speedy Trial Act (STA), see 18 U.S.C.A §§ 3161-3174 (West 1985 & Supp.1995). Concluding the STA, by its plain language, does not apply in this case, we vacate the district court’s judgment and remand this case for further proceedings.

I.

On May 10, 1994, Tootle was indicted in the Eastern District of North Carolina on one count of possession of a firearm after having been convicted of a crime punishable by imprisonment for more than one year, see 18 U.S.C.A. § 922(g)(1) (West Supp.1995), and one count of receiving and possessing an unregistered short-barrelled shotgun, see 26 U.S.C.A. § 5861(d) (West 1989). On July 7, 1994, Tootle was arrested and afforded an initial appearance before a federal magistrate judge, see Fed.R.Crim.P. 5, at which time the magistrate judge ordered Tootle temporarily detained pending a detention hearing set for July 12, 1994, and appointed him counsel. Tootle did not enter a plea of not guilty at his initial appearance. Following the detention hearing on July 12, 1994, Tootle was ordered detained for trial. Again, at this hearing, Tootle did not enter a plea of not guilty.

On the same day of the detention hearing, Tootle filed a request for discovery and disclosure of exculpatory evidence with the clerk of the district court. The government and Tootle agree that the clerk’s office inadvertently docketed Tootle’s request as a motion for discovery and exculpatory evidence and, according to both parties, this caused the district court’s calculation of Tootle’s speedy trial deadline under the STA to be improperly calculated beyond the day of the actual deadline.

Following plea negotiations that ensued, the government sent Tootle a proposed Memorandum of Plea Agreement, which he signed on August 12, 1994. Under this agreement, Tootle agreed to plead guilty to receiving and possessing an unregistered short-barrelled shotgun, see 26 U.S.C.A § 5861(d), while reserving the right to appeal a sentence that exceeded 115 months’ imprisonment, in exchange for a dismissal of the count charging him with possession of a firearm after having been convicted of a crime punishable by imprisonment for more than one year, see 18 U.S.C.A. § 922(g)(1). The parties, however, never filed the plea agreement with the district court.

Thereafter, the clerk’s office set Tootle’s arraignment and/or trial for November 14, 1994, at which time he was to enter a plea of guilty based on the plea agreement.¹ On November 9, 1994, Tootle filed a motion to dismiss his indictment with prejudice under the STA on the ground that he had not been brought to trial within seventy days of his detention hearing on July 12, 1994. See 18 U.S.C.A. § 3161(c)(1). According to Tootle, the seventy-day time period expired on September 20, 1994.

On November 14,1994, the day Tootle was scheduled to be arraigned and/or tried, the district court never arraigned Tootle, but rather held a hearing on Tootle’s motion to dismiss under the STA. At the hearing, the district court held that Tootle’s right under the STA was violated, and, consequently, the district court granted Tootle’s motion, dismissing his indictment with prejudice over the government’s objection. The government appeals.

II.

In urging affirmance, Tootle asserts that the district court correctly concluded that his right to a speedy trial under the STA was violated. In deciding the validity of Tootle’s assertion, “[w]e begin, as we must, by examining the statutory language, bearing in mind that we should give effect to the legislative will as expressed in the language.” United States v. Murphy, 35 F.3d 143, 145 (4th Cir.1994). If “[t]he language ... [is] facially clear and “within the constitutional authority of the law-making body which passed it, the sole function of th[is] court[ ] is to enforce it according to its terms.’ ” Id. (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). The STA provides in pertinent part that:

[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.

18 U.S.C.A. § 3161(c)(1) (emphasis added).

Under the plain language of section 3161(c)(1), unless a defendant has entered a plea of not guilty, the provisions of that section have not been triggered. Here, somewhat anomalously, Tootle never entered a plea of not guilty before the district court. Both parties expressed at oral argument that this comports with the rather unconventional practice in the Eastern District of North Carolina to arraign defendants on the first day of trial.² Regardless of the reason for the delay in Tootle’s arraignment, Tootle’s case does not trigger section 3161(e)(1) of the STA because his case is not one “in which a plea of not guilty [wa]s entered,” 18 U.S.C.A. § 3161(c)(1). Given our duty to enforce congressional mandates as written, we are constrained to conclude that the district court erred in holding that Tootle’s right to a speedy trial under the STA was violated.

III.

Having concluded that the STA does not apply, we note that a defendant who is in custody awaiting arraignment and/or trial is not without the ability to seek a remedy for the time he or she spends incarcerated without benefit of a timely arraignment and/or speedy trial. In these situations, a defendant can apply for a writ of habeas corpus with the district court pursuant to 28 U.S.C.A. § 2241(c)(3) (West 1994), alleging that he or she is in custody in violation of his or her due process rights under the Fifth Amendment to the United States Constitution and his or her right to a speedy trial under the Sixth Amendment. Title 28 U.S.C.A. § 2241(c)(3) provides: “(e) The writ of habeas corpus shall not extend to a prisoner unless — ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States.” The purpose of habeas corpus is to test the legality of detention. See Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982). Pre-trial petitions for habeas corpus “are properly brought under 28 U.S.C.A. § 2241, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 352, 98 L.Ed.2d 378 (1987).³

IV.

Having concluded that Tootle’s right to a speedy trial under the STA was not violated, the judgment of the district court is vacated and the case is remanded to the district court for further proceedings.

VACATED AND REMANDED.

1 . According to the parties, it is the practice in the Eastern District of North Carolina to arraign a defendant on the trial date set by the court. This practice allows the district court, on the arraignment and/or trial date, to either: (1) accept a defendant’s plea of guilty, or (2) accept a defendant's plea of not guilty and proceed to hold a trial.

2 . The Eastern District of North Carolina's unique practice of setting a defendant’s arraignment on the day of that defendant’s trial is, as this case illustrates, an improvident practice. If Tootle had entered a plea of not guilty on the day of his scheduled arraignment and/or trial, a violation of the STA would have occurred, and, presumably, the issue before us would be whether the district court erred in dismissing the indictment with prejudice. Fortunately for the government, Tootle never entered a plea of not guilty.

3 . We express no opinion on whether Tootle would have been entitled to relief under 28 U.S.C.A. § 2241.