Roger Kornegay v. David Ebbert

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1647
___________
ROGER G. KORNEGAY,
Appellant
v.
WARDEN DAVID J. EBBERT
____________________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1:11-cv-02344)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 18, 2012
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Opinion filed: October 22, 2012)
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OPINION OF THE COURT
_________
PER CURIAM
Roger Kornegay appeals the denial of his habeas corpus petition, which was filed
pursuant to 28 U.S.C. § 2241. We will affirm.
At the time this action began, Kornegay was in federal custody at FCI Allenwood
in White Deer, Pennsylvania, serving a sentence arising out of a probation violation. See
D. Neb. Crim. No. 8:07-cr-00430, ECF Nos. 17–18. On October 14, 2011, Allenwood‘s
warden, respondent David Ebbert, received a ―request for temporary custody‖ (―Form
V‖) pursuant to Article IV of the Interstate Agreement on Detainers (―IAD‖) from an
assistant district attorney in Pender County, North Carolina, pertaining to a North
Carolina criminal matter. Kornegay wrote to Ebbert, asking for the extradition request to
be denied because, inter alia, the Form V did not ―have proper documentation attached to
it‖; he also asked for a pre-transfer hearing and for appointment of counsel. Inmate
Request to Staff, ECF No. 2. In his answer, Ebbert observed that his actions were
governed by Bureau of Prisons Program Statement 5130.06, and notified Kornegay that
he was ―grant[ing North Carolina‘s] request for temporary custody.‖ Inmate Request to
Staff Response, ECF No. 2.
In response, Kornegay petitioned for a writ of habeas corpus, asserting his right to
a hearing and alleging numerous deficiencies in the materials provided by the North
Carolina authorities. Kornegay relied principally on Cuyler v. Adams, 449 U.S. 433(1981), which held that ―prisoners transferred pursuant to the provisions of the [IAD] are
not required to forfeit any pre-existing rights they may have under state or federal law to
challenge their transfer to the receiving State.‖ Id. at 450. ―Therefore,‖ Kornegay
argued, ―the evidence clearly shows that Warden Ebbert has no intentions of complying
with an extradition hearing and granting [Kornegay] his rights under the US Constitution,
2
Article IV, [Section] 2, Clause 2.‖1 Mem. ¶ 3, ECF No. 2. However, the Government
pointed out a crucial defect in Kornegay‘s argument: Cuyler, which dealt in part with the
Uniform Criminal Extradition Act (UCEA), did not apply because ―the United States has
neither adopted the [UCEA] nor enacted any other statute providing the right of hearing.‖
Resp. 3, ECF No. 8. The District Court agreed, denying both Kornegay‘s petition and his
request for a temporary restraining order to prevent his extradition. See Kornegay v.
Ebbert, No. 1:11-CV-2344, 2012 WL 719025 (M.D. Pa. Mar. 1, 2012). Kornegay timely
appealed.
We have jurisdiction under 28 U.S.C. § 1291.2 A certificate of appealability is not
required. United States v. Cepero, 224 F.3d 256, 264–65 (3d Cir. 2000), abrogated on
other grounds by Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641 (2012). Because this
appeal rests on matters of law, our review is de novo. See O‘Donald v. Johns, 402 F.3d
172, 173 n.1 (3d Cir. 2005) (per curiam). We may affirm for any reason supported by the
record. Alexander Hamilton Life Ins. Co. of Am. v. Gov‘t of V.I., 757 F.2d 534, 547–48
(3d Cir. 1985).
1
The Extradition Clause of the United States Constitution provides that a ―Person
charged in any State with Treason, Felony, or other Crime, who shall flee from Justice,
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.‖ U.S. Const. art. IV, § 2, cl. 2.
2
Kornegay has since been extradited to North Carolina. While this moots his request for
a temporary restraining order, it does not otherwise affect his habeas corpus petition,
because he remains ―in custody‖ and, as the Government concedes, this Court could
3
The District Court correctly determined that Kornegay was not entitled to a
hearing or other relief under the IAD and UCEA. Whereas a prisoner transferred under
the UCEA is entitled to a pre-transfer hearing, no similar provision is found in the IAD.
Cuyler, 449 U.S. at 443; see also id. at 436 n.1 (discussing the ambit of the IAD and
UCEA, as well as to whom they apply). Cuyler emphasized that persons transferred
under the IAD do not relinquish other rights they may have; however, unless the
―sending‖ jurisdiction is a party to the UCEA, a right to a pre-transfer hearing does not
attach. See id. at 448. Contrary to Kornegay‘s assertions, the sending jurisdiction here is
the United States, not Pennsylvania, and ―the United States is not a party to the [UCEA],
so . . . whatever protections are accorded under that Act could not be applied to
[Kornegay], a federal prisoner.‖ Wilson v. Fenton, 684 F.2d 249, 252 (3d Cir. 1982);
accord Mann v. Warden of Eglin Air Force Base, 771 F.2d 1453, 1454 (11th Cir. 1985)
(per curiam) (citing Wilson). Thus, Cuyler does not extend him the protection he seeks,
and Kornegay points to no other source of law that would mandate a hearing.
However, throughout his District Court submissions, Kornegay emphasized that
his petition was not premised on the UCEA, but rather on the Extradition Clause, the Due
Process Clause, and the Extradition Act, 18 U.S.C. § 3182. See, e.g., Pet‘r‘s Reply 4,
ECF No. 9; see also United States v. Hooker, 607 F.2d 286, 288 (9th Cir. 1979)
(describing § 3182 as ―alternative mechanism for interstate extradition‖). Assuming
plausibly still fashion some relief. See 28 U.S.C. § 2241(c); cf. Ehrheart v. Verizon
Wireless, 609 F.3d 590, 596 (3d Cir. 2010).
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arguendo that Kornegay may assail additional elements of his extradition through a
§ 2241 petition, we find that his claims are without legal foundation. It is well
established that the Extradition Clause of the Constitution is not self-executing; rather, 18
U.S.C. § 3182 serves to effectuate the language of the Clause. See, e.g., N.M. ex rel.
Ortiz v. Reed, 524 U.S. 151, 152 (1998) (per curiam); California v. Super. Ct. of Cal.,
482 U.S. 400, 406 (1987); Mokone v. Fenton, 710 F.2d 998, 1003 n.16 (3d Cir. 1983);
United States ex rel. Darcy v. Superintendent of Cnty. Prisons, 111 F.2d 409, 411 (3d Cir.
1940). By its plain statutory language, 18 U.S.C. § 3182 applies to demands by
―executive authorit[ies] of any State or Territory‖ of ―executive authorit[ies] of any State,
District, or Territory.‖ The United States, which is neither a ―State,‖ ―District,‖ nor
―Territory,‖ is not mentioned. Cf. New York ex rel. Kopel v. Bingham, 211 U.S. 468,
474 (1909) (construing predecessor statute to § 3182 to expand constitutional language
beyond ―States only‖ to ―the Territories as well as [] the States‖). As the Honorable
Judge Ditter has observed:
[A]n examination of the purpose and nature of the extradition obligation
reveals its inapplicability to the transfer of custody from the federal
government to a state. . . . Th[e] historical objective of extradition—to
prevent the territorial boundaries of a state‘s sovereignty from frustrating its
efforts to bring to justice those who violate its laws—obviously has no
application to the dual or ‗vertical‘ territorial sovereignty which
characterizes the federal-state relationship. . . . Furthermore, to apply the
Extradition Act to the federal government would be to impose on it an
obligation to deliver up a person within its exclusive jurisdiction on the
demand of a state. This is an obligation from which the federal government
has long been immune by virtue of the Supremacy Clause. . . . [I]n the
absence of an express indication that Congress intended the Extradition Act
to operate [to waive immunity], it would be inappropriate to apply its terms
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to the federal government.
Thomas v. Levi, 422 F. Supp. 1027, 1032–33 (E.D. Pa. 1976) (footnotes and citations
omitted); see also Adams v. Cuyler, 592 F.2d 720, 724 n.3 (3d Cir. 1979) (noting the
holding in Thomas), aff‘d, Cuyler v. Adams, 449 U.S. 433 (1981). Because one of the
two jurisdictions here was the United States, Kornegay could not state a claim under 18
U.S.C. § 3182. Nor has he pointed to a case that would suggest any constitutional
infirmity of the pre-extradition process afforded to him by the relevant Bureau of Prisons
program statement. See Mann, 771 F.2d at 1454; see also Michigan v. Doran, 439 U.S.
282, 287–89 (1978).3
For the foregoing reasons, we will affirm the judgment of the District Court.
Kornegay‘s motion requesting extradition from Pender County is denied.
3
We have examined the cases cited by Kornegay, but none supports his position. He
does accurately quote Trafny v. United States, No. 2:06-CV-578, 2007 WL 2815436 (D.
Utah Sept. 25, 2007), in which the District Court for the District of Utah observed, in
passing, that the UCEA would apply to ―federal-to-state[] or state-to-state transfers under
the IAD.‖ Id. at *2. This may simply be a mistake; alternatively, Trafny is most
plausibly read as pertaining to the wording of Utah‘s UCEA implementation, which
would require a pre-transfer hearing in a transfer to Utah if the United States were a
signatory to the UCEA, which it is not. In any case, the Tenth Circuit clarified on appeal
that the ―protections of Utah‘s UCEA only apply to transfers between actual states of the
Union.‖ Trafny v. United States, 311 F. App‘x 92, 95 (10th Cir. 2009) (non-
precedential).
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