Joseph Herbert Mars v. United States , 615 F.2d 704 ( 1980 )

CELEBREZZE, Circuit Judge.

This case is before the court on appeal from a judgment entered by the district court after remand denying appellant’s petition for relief from judgment pursuant to 28 U.S.C. § 2255. 463 F.Supp. 87 (E.D.Mich.1978). On September 26, 1975 appellant Joseph H. Mars was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and received a ten year prison term to run consecutively with a six-month term for criminal contempt.¹ The issues presented for appellate review are three: whether a violation of the Interstate Agreement on Detainers Act² [hereinafter IAD or Act] is cognizable Under 28 U.S.C. § 2255; whether appellant’s failure to raise his IAD claim prior to or during trial constitutes a waiver of any claim for relief under the Act; and whether the Supreme Court’s decision in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), should receive retroactive application to the facts of the instant case. For the reasons stated below, we affirm.

I. Factual Background

Mars was indicted on July 16,1975, in the Eastern District of Michigan for bank robbery in violation of 18 U.S.C. § 2113(a). At the time of his indictment Mars was serving a two-fifteen year prison term pursuant to a state conviction for armed robbery. Prior to his federal indictment the Government had directed to state correctional facility officials a detainer against Mars.

On July 24, 1975 Mars was taken into federal custody pursuant to a writ of habeas corpus ad prosequendum. On July 31, 1975 Mars was returned to state custody without having been tried on his federal charges. A subsequent ad prosequendum writ issued on September 11, 1975, and Mars was again taken into federal custody. After being tried and convicted on his federal indictment Mars was returned to state custody on August 1, 1975.³ This court affirmed Mars’ conviction on February 23, 1977. 551 F.2d 711 (6th Cir. 1977).

On January 21, 1977, Mars petitioned the district court for relief pursuant to 28 U.S.C. § 2255, and alleged, for the first time, that the Government had violated Article IV(e)⁴ of the IAD by removing him from and returning him to state custody without proceeding to trial on the federal charges.⁵ Initially, the district court denied Mars’ petition because it concluded that the writ of habeas corpus ad prosequendum was not a “written request for temporary custody or availability” within the meaning of Art. IV(e) and therefore did not trigger that provision’s sanctions. Mars appealed to this court, and we remanded the case to the district court for reconsideration in light of the Supreme Court’s decision in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).⁶

On remand the district court again denied appellant’s motion for relief. The court held that the Mauro decision should not be accorded retroactive effect and even if it was retroactively applied, Mars had effectively waived any IAD claim by failing to raise his objection prior to or during trial.⁷ This appeal followed.

II. Discussion

In United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329, the Supreme Court held that

[o]nce the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions. And once a detainer has been lodged, the United States had precipitated the very problems with which the Agreement is concerned. Because at that point the policies underlying the Agreement are fully implicated, we see no reason to give an unduly restrictive meaning to the term “written request for temporary custody.” It matters not whether the Government presents the prison authorities in the sending State with a piece of paper labeled “request for temporary custody” or with a writ of habeas corpus ad prosequendum demanding the prisoner’s presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State. The fact that the prisoner is brought before the District Court by means of a writ of habeas corpus ad prosequendum in no way reduces the need for this prompt disposition of the charges underlying the detainer. In this situation it clearly would permit the United States to circumvent its obligations under the Agreement to hold that an ad prosequendum writ may not be considered a written request for temporary custody.

Id. at 361-62, 98 S.Ct. at 1848 (footnote omitted).

In light of the detainer which had been lodged against Mars, his subsequent removal from state custody pursuant to an ad prosequendum writ, and his return to state custody without having been tried on his federal charges, if the decision in United States v. Mauro, supra, is given retroactive effect, the Government indeed violated Art. IV(e) of the Act.

Our initial inquiry must be whether Mars’ prayer for relief based on the Government’s violation of the IAD is cognizable under § 2255. Section 2255 entitles a prisoner incarcerated pursuant to a federal judgment of conviction to post-conviction relief on four grounds: the sentence imposed violates the constitution or laws of the United States; the court that entered the judgment of conviction lacked jurisdiction to do so; the sentence exceeds the maximum authorized by law; or the sentence “is otherwise subject to collateral attack.” Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470, 7 L.Ed.2d 417 (1962); Huff v. United States, 599 F.2d 860, 863 (8th Cir. 1979).

The present case does not involve a claim of a constitutional violation nor is there any doubt that the trial court possessed jurisdiction over the appellant and the crime involved.⁸ Thus, Mars’ § 2255 claim for relief must rest upon the allegation that his conviction was in violation of the “laws of the United States,” viz., in violation of the IAD, or “is otherwise subject to collateral attack.”

In Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), the Supreme Court stated that not every asserted error of law can be raised on a motion for § 2255 relief. In Davis the Court articulated the appropriate inquiry for determining when an asserted error of law may form the basis for § 2255 relief. We must determine whether the error was “ ‘a fundamental defect which inherently results in a complete miscarriage of justice’ and whether ‘[i]t . . presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Id. at 346, 94 S.Ct. at 2305, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Accord, United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).

In our view appellant’s instant claim for relief does not rise to the level of seriousness justifying § 2255 relief. The IAD provides prisoners charged with criminal offenses with important protections concerning the timing and notice of various proceedings against them. The violation of the IAD protection asserted by Mars, viz., that he was not returned to state custody without having been first tried on his federal charges, falls far short of a “fundamental defect” causing a “complete miscarriage of justice” or of “exceptional circumstances” that might justify § 2255 relief. Appellant has failed to display how the Government’s violation of the IAD has in any way affected or impugned- the integrity of the fact finding process at his trial. Additionally, an examination of the record does not disclose that the violation caused Mars any harm, either in his defense to the pending federal charge or to his status in the state prison system. Mars has failed to demonstrate that the transfers between state and federal custody caused him any actual prejudice.

Therefore, we join the view of our brothers in the second, eighth, and ninth circuits that in instances similar to the present case, IAD claims are not cognizable under a motion for § 2255 relief. See Huff v. United States, 599 F.2d 860 (8th Cir. 1979); Hitchcock v. United States, 580 F.2d 964 (9th Cir. 1978); Edwards v. United States, 564 F.2d 652 (2d Cir. 1977).⁹

There exists an alternative basis upon which to affirm the judgment of the district court. In United States v. Eaddy, 595 F.2d 341, 346 (6th Cir. 1979) this court held that “prisoner rights created by the Agreement [IAD] are waived by forfeiture or default if not raised prior to or during trial.” In the present case appellant waived any claim for relief he may have had under the IAD through his failure to raise his IAD claim “prior to or during trial.” As we stated in Eaddy, “[t]o allow a prisoner to assert violations of the Agreement beyond the trial stage, without a showing of cause, would ‘encourage piecemeal litigation of claims of error . and undercut the policy of achieving prompt and final judgments.’ ” 595 F.2d at 346 (citations omitted).

The remaining issue to be decided concerns the retroactivity of the Supreme Court decision in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). As stated above, unless we accord retroactive application to the Mauro decision no violation of the IAD occurred in the present case. In light of our conclusions that appellant has waived any IAD claim he may have had and that § 2255 is not an appropriate vehicle to raise appellant’s IAD claim, we need not decide today whether Mauro should receive retroactive application.¹⁰

Accordingly, the judgment of the district court is affirmed.

1 . Mars was found guilty of criminal contempt for his refusal to obey a court order directing him to produce a handwriting exemplar.

2 . 18 U.S.C. App. § 2.

3 . Mars was again taken into federal custody on December 3, 1975, for sentencing, and the district court imposed a ten and one-half year term of imprisonment. Thereafter, Mars was returned to Ionia State Reformatory.

4 . Art. IV of the IAD provides in pertinent part:

(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e), hereof, 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.

5 . Appellant also alleged the Government violated Art. IV(c) of the Act claiming the Government failed to commence his trial within 120 days of his arrival into federal custody. The district court determined on remand that Mars had been tried within 120 days of his arrival into federal custody and that Art. IV(c) was not violated. This issue was not vigorously argued on appeal by appellant. Regardless of appellant’s fervor in arguing this basis for relief, the following discussion concerning Art. IV(e) is equally applicable to appellant’s Art. IV(c) allegations.

6 . United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), was decided while this case was pending its first appeal. The Mauro decision specifically undercut the validity of the primary basis for the district court’s denial of relief. A remand was necessary to determine three basic issues: whether Mauro should be applied retroactively; whether Section 2255 is an appropriate means to raise IAD claims; and whether Mars waived any of his IAD claims.

7 . The district court did not decide the particular issue of whether § 2255 is an appropriate way to raise an IAD claim. The district court held that our remand had effectively foreclosed a negative answer reasoning if we believed § 2255 was an inappropriate vehicle for relief we would never have remanded the case. That conclusion was erroneous. We remanded the case with specific instructions to decide the cognizability issue and our purpose was, in accordance with established appellate practice, to have that issue decided initially in the district court.

8 . The dissent seems to suggest that a violation of the IAD is jurisdictional and deprives a trial court of any power to proceed with criminal proceedings on the indictment. Our decision in United States v. Eaddy, 595 F.2d 341, 346 (6th Cir. 1979), specifically held to the contrary, and stated “[njeither does a violation of Article IV automatically strip the trial court of subject matter jurisdiction over the underlying criminal charges upon which the detainer was lodged.”

9 . Appellant argues that since this court has granted relief to a state prisoner under 28 U.S.C. § 2254 for a violation of the IAD in Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), we should accord appellant the same relief under § 2255. In Stroble this court was not presented with the issue of cognizability of IAD violations under § 2254 nor did we decide that issue. Therefore, we find the Stroble decision not dispositive of the scope of § 2254 or § 2255 relief.

At this point we add the following caveat. Our decision today does not foreclose § 2255 relief for governmental violations of the IAD in instances where petitioner can show he was actually prejudiced by the violations or that his IAD rights properly asserted before the trial court were not properly vindicated.

10 . Our research has disclosed only one case discussing this issue. In Brown v. Mitchell, 598 F.2d 835 (4th Cir. 1979) the fourth circuit refused to apply United States v. Mauro retroactively. For a discussion of retroactivity in this area see Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See also United States v. Calandrella, 605 F.2d 236 (6th Cir. 1979).