UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: June 29, 1978.
JOSE WILLIAM ECHEVARRIA, PETITIONER-APPELLANT,
GRIFFIN BELL, ATTORNEY GENERAL OF THE UNITED STATES, WARDEN W. R. NELSON, METROPOLITAN CORRECTIONAL CENTER, AND STATE OF ILLINOIS, RESPONDENTS-APPELLEES
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.
MARKEY, Chief 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 On November 24, 1976, on Echevarria's own motion, the mittimus previously issued to the County Jail was withdrawn, Echevarria was returned to federal custody, and was lodged in the Metropolitan Correctional Center virtually across the street from the County Jail.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 unless the state processes are demonstrably ineffective to protect the rights of the petitioner."*fn11
"When a federal court is unable to determine unequivocally that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts." Tyler v. Swenson, 527 F.2d 877 at 880 (8th Cir. 1976) (citing Fay v. Noia, 372 U.S. 391 at 420, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963)). See also United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).
Whether a three-week period of federal custody, following eight days after removal to state custody under the Act, and granted at a prisoner's request violates Article IV(e) of the Act has not been decided by the Illinois courts. The cases cited by Echevarria, Neville and Dye, supra, are sufficiently distinguishable on their facts from those in the present case, that it cannot be determined "unequivocally that [the] issue has been considered and ruled upon by the state courts . . ."
In Neville, a single issue was presented: Does article IV(e) of section 3-8-9(a) of the Unified Code of Corrections require the dismissal of indictments pending against a defendant who, as a result of a lengthy, indefinite trial continuance granted at his request, has been returned to the sending jurisdiction without objection on his behalf?
67 Ill.2d at 491, 367 N.E.2d at 1342.
In Dye, the court stated:
We believe that the reasoning of Neville is applicable to the situation before us today. And, while we are aware of certain dissimilarity between the facts in Neville and those in the case at bar, we do not feel that the differences are controlling. Both prisoners were returned to the places of their original imprisonment, the Federal penitentiary in Terre Haute, during the length of continuances granted at their own request. As in Neville [67 Ill.2d at 494, 367 N.E.2d at 1344], we regard this to be a highly significant fact.
69 Ill.2d at 303, 371 N.E.2d at 632 (emphasis added). In the present case, no continuance per se was involved. Echevarria was returned to federal custody at his own request, and prior to the state trial, but nothing of evidence indicates that a continuance was requested or ordered. The net result was that Echevarria spent three weeks of his pretrial detention on the state charge in federal, rather than state, custody. Whether his state trial was delayed, either by action of state or federal authorities or by his own action*fn12 in requesting transfer of custody, does not appear in the record.
Echevarria's argument, that the Illinois courts have, and therefore would, disregard certain federal decisions allegedly requiring issuance of the writ he seeks, is without merit. The federal cases allegedly disregarded in Neville and Dye - Ricketson, Mauro, and Sorrell, supra note 3 - are distinguishable.
In Ricketson, defendant, while serving a sentence in state prison, was taken to federal court on three separate occasions - for arraignment, deposition, and disposition of pre-trial motions - before any detainer was filed by the United States. This court therefore held that the Act was inapplicable and the failure to try defendant before return to state custody was irrelevant. Because the court was not called upon to interpret Article IV(e), its statement relied on by Echevarria, that ". . . there are no exceptions to the requirement that defendant not be returned to state custody untried," 498 F.2d at 373, is of limited, if any precedential value and cannot in itself be presumed to be either persuasive, or controlling upon Illinois' interpretation of Article IV(e). In Ricketson, this court was not looking beyond the facts there presented, nor could it have considered the ramifications of its statement in other contexts, ". . . the contemplation of which [was] precluded by the exigencies of deciding a particular case presented on a limited record developed by present parties." Leannais v. Cincinnati, Inc., 565 F.2d 437 at 441 (7th Cir. 1977).
Similarly, the quotation from Mauro relied upon by Echevarria, "The participating parties to the Agreement have . . . solemnly promised that his [defendant's] trial will be expeditious and will take place before he is returned on penalty of a dismissal of the indictment with prejudice," 544 F.2d at 593, cannot be considered controlling. In Mauro, each defendant separately moved for dismissal of his indictment prior to trial, on the ground of violation of Article IV(e) of the Act, which motions were granted, id. at 590, and the issue in Mauro was whether a writ of habeas corpus ad prosequendum issued by the United States should be treated as a detainer under the Act. Id. at 591.
Sorrell is equally distinguishable. There, defendant was twice removed from state prison to federal custody pursuant to a writ of habeas corpus ad prosequendum. The second time, a continuance was granted at the request of defendant's counsel, and defendant was returned to the state prison. Defendant filed a motion to dismiss with prejudice, pursuant to Article IV(e) of the Act, when the trial was scheduled. In granting the motion, the district court did not consider the effect of the request for a continuance, so vital to the decisions in Neville and Dye, supra, nor the effect of a pre-trial custody transfer request by the defendant, as occurred here. Though the court stated, "It is the fact of transfer, and not the reason that is important," 413 F. Supp. at 141, that statement of the district court in Pennsylvania is not controlling in the Illinois courts.
We express no view respecting the applicability to the present facts of the reasoning in Ricketson, Mauro and Sorrell. It is enough to hold, as we do, that those federal decisions were not so controlling of the situations involved in Neville and Dye as to establish that Illinois has disregarded federal law. Similarly, we express no view on whether Illinois courts would reach here the result they reached in Neville and Dye, i.e., that Illinois would apply those cases, stare decisis, to the present facts. Again, it is enough to hold, as we do, that a present exercise of federal jurisdiction would be premature where, as here, the prisoner has not shown that Illinois' "processes are demonstrably ineffective to protect" his rights. Wilson, supra, at 589.
Because the Act is creative of federal rights and interpretation of the Act presents a federal question, federal jurisdiction is present here. Nonetheless, no federal case interpreting Article IV(e) is controlling in the context of the present case, and neither Neville nor Dye is exhaustive of Illinois' interpretation of Article IV(e). Under the circumstances, the action of the Illinois courts, given the opportunity to adjudicate in the present case, cannot be predicted with an accuracy so fine as to warrant the exercise of federal jurisdiction. We therefore decline the exercise of our jurisdiction, and require that Echevarria, before seeking relief in the district court pursuant to 28 U.S.C. § 2241, et seq.,*fn13 exhaust the remedies provided by Illinois. Accordingly, the order of the district court is affirmed.