Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 C 2772-Julius Hoffman, Judge.
Fairchild, Chief Judge, Markey, Chief Judge of the Court of Customs and Patent Appeals,*fn1 and Bauer, Circuit Judge.
Appeal from an order of the United States District Court for the Northern District of Illinois, case No. 77 C 2772, dismissing petitioner's motion for issuance of a writ of habeas corpus. We affirm.
On October 21, 1975, petitioner Echevarria was sentenced to prison on a federal charge. On November 16, 1976, upon petition of the respondent State of Illinois, pursuant to the Interstate Agreement on Detainers Act (Act), Ill. Rev. Stat. ch. 38 (1973), Echevarria was removed from federal to state custody, to stand trial on an unrelated state charge and was lodged in the County Jail. On November 24, 1976, on Echevarria's own motion, the mittimus previously issued to the County Jail was withdrawn, Echevarria was returned to federal custody, and was lodged in the Metropolitan Correctional Center virtually across the street from the County Jail. On December 13, by order of the state court, he was remanded to the custody of the Cook County Sheriff. On February 2, 1977, Echevarria pleaded guilty to the state charge, and was sentenced to serve a state prison term concurrent with his federal term. On November 17, 1977 Echevarria filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254(b),*fn2 alleging that a violation of Article IV(e) of the Act, Ill. Rev. Stat. ch. 38, § 1003-8-9(a),*fn3 occurred when he was returned to federal custody on November 24, 1976, without his having been tried on the state charge. The district court dismissed the petition for failure to show exhaustion of state remedies.*fn4 This court issued a certificate of Probable Cause in view of the alleged violation of the Act.
On appeal, Echevarria argues that, as envisioned in § 2254(b), circumstances existed relieving him from the requirement of exhausting state remedies; specifically, that in Neville v. Friedman, 67 Ill.2d 488, 367 N.E.2d 1341, 10 Ill. Dec. 575 (1977) and in People v. Dye, 69 Ill.2d 298, 371 N.E.2d 630, 13 Ill. Dec. 695 (1977), the Illinois Supreme Court denied relief where the record disclosed a continuance granted at defendant's request, and that there is no reason to believe that the Illinois courts would now take a different position. Echevarria cites federal court decisions,*fn5 allegedly contrary to the position set forth in Neville and Dye, as indicating that Illinois courts are in disagreement with federal law as defined in those decisions.
The issues are (1) whether the Act is a law of the United States conferring jurisdiction on this court under 28 U.S.C. § 2254(a);*fn6 and (2) whether the circumstances here relieved Echevarria of the requirement that he exhaust his state remedies.*fn7
1. Jurisdiction Under 28 U.S.C. § 2254(a)
Illinois argues that no issue involving the violation of "Laws . . . of the United States" is presented here. We disagree.
Under the Act, prisoners have both state and federal rights. Art. I, § 10, cl. 3 of the United States Constitution provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . ." Congress has given consent in advance "to any two or more States to enter into agreements . . . for cooperative effort . . . in the prevention of crime and in the enforcement of their respective criminal laws . . ." 4 U.S.C. § 112(a) (1970). The Act is an agreement for cooperative effort in the enforcement of the signatory states' criminal laws. "The construction of a compact sanctioned by Congress under art. I, § 10, cl. 3, of the Constitution presents a federal question."*fn8 Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 at 278, 3 L. Ed. 2d 804, 79 S. Ct. 785 (1959) (citing Delaware River Commission v. Colburn, 310 U.S. 419 at 427, 84 L. Ed. 1287, 60 S. Ct. 1039 (1940)), and "involves a federal 'title, right, privilege or immunity.'" Colburn, 310 U.S. at 427.*fn9 Thus an allegation of a state prisoner, that he has been denied rights under the Act, is an allegation that he is in custody in violation of a law of the United States, and the requirement for federal habeas corpus jurisdiction under 28 U.S.C. § 2254(a) is met.*fn10
2. Exhaustion of State Remedies
Exhaustion is not a jurisdictional requirement, and does not go to the power of the district court to hear petitions for writ of habeas corpus. United States ex rel. Wilson v. Rowe, 454 F.2d 585 at 588 (7th Cir. 1972). However, as this court said in that case, id. at 589, "the principle of comity gives continued real viability to the [exhaustion] doctrine which should be followed ...