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United States District Court, Northern District of Illinois, E.D

July 31, 1984


The opinion of the court was delivered by: Getzendanner, District Judge:


This habeas corpus petition is before the court on petitioner's motion for summary judgment. For the reasons stated below, the court grants petitioner's motion.


In October 1976, petitioner Robert Holleman participated in the murders of Scott Moore and Robin Opfer. Moore was murdered in the Chicago apartment he shared with Opfer, but Opfer was transported to Indiana before she was murdered. Holleman subsequently was convicted in Indiana of murdering Opfer, and in the Circuit Court of Cook County, Illinois of murdering Moore. Holleman already was incarcerated in Indiana when proceedings began in Illinois, and Illinois secured temporary custody of Holleman, for purposes of trying him, under Article IV of the Interstate Agreement on Detainers ("IAD"), which in Illinois is codified at ch. 38, § 1003-8-9. In his habeas corpus petition to this court, Holleman challenges his Illinois conviction based on various delays which occurred at different stages in the process of his return to Illinois for trial. Holleman's present motion for summary judgment is based solely on delays occurring between his arrival in Illinois and his trial, and the court will address only that time period.

Holleman arrived in Illinois on March 28, 1978. (Stipulation, tr. p. 5.) Article IV of the IAD required Illinois to bring Holleman to trial within 120 days after his arrival in Illinois, excluding certain continuances:

    In respect of any proceeding made possible by
  this Article, trial shall be commenced

  within 120 days of the arrival of the prisoner in
  the receiving state, but for good cause shown in
  open court, the prisoner or his counsel being
  present, the court having jurisdiction in the
  matter may grant any necessary or reasonable

Art. IV(c).*fn1 As discussed below, Holleman was not brought to trial within the 120-day period specified in Art. IV(c). The trial court therefore was required to impose the IAD's mandatory sanction of dismissal with prejudice:

  [I]n the event that an action on the indictment,
  information, or complaint on the basis of which
  the detainer has been lodged is not brought to
  trial within the period provided in . . . Article
  IV hereof, the appropriate court of the
  jurisdiction where the indictment, information,
  or complaint has been pending shall enter an
  order dismissing the same with prejudice, and any
  detainer based thereon shall cease to be of any
  force or effect.

Art. V(c). The trial court did not dismiss Holleman's indictment with prejudice; instead, it tried and convicted him. This violation of Art. IV(c), and the failure to dismiss Holleman's indictment under Art. V(c), underlie one of Holleman's claims, and it is on the basis of this claim that he moves for summary judgment.


On this motion respondent*fn2 appears to concede that the 120-day limitation of Art. IV(c) was violated.*fn3 Despite respondent's concession, the court will discuss this issue briefly. Insofar as is relevant to determining whether the 120-day limitation was exceeded, the record before the court consists primarily of the Memorandum of Orders, or "half-sheet," kept in the Circuit Court of Cook County, supplemented only by certain oral stipulations entered into before the trial judge when Holleman's post-trial motions were argued. The half-sheet entries are very brief. Each entry lists the date of the order and the judge's name, and almost all the entries also carry the notation "PP," which apparently means "Parties Present." Many entries also give Holleman's name in parentheses. Almost all the entries then state "B/A" (By Agreement), "O/C" (Order of Court), or "M/S" (Motion of State), followed by the date to which the case is continued; the new date is marked with a "w" or "x," which the court understands to relate to subpoenas. Only a handful of entries carry any other notations. Two entries carry the notation "DDT," which the court understands to mean "Defendant Demands Trial," but the State stipulated that Holleman demanded trial on several more dates as well. (Tr. pp. 57-58.)*fn4 Nothing in any entry reflects any determination that good cause had been shown for a continuance.

Attached hereto as Appendix A is a table analyzing the time which passed between Holleman's arrival in Illinois on March 28, 1978, and his trial, which took place on November 6, 1978, 223 days later. Under Art. IV(c), continuances ordered "for good cause shown in open court, the prisoner or his counsel being present" are excluded from the 120-day period.*fn5 The parties have assumed all along that any continuance requested or agreed to by Holleman should be excluded from the 120-day period, and the court will not disturb that assumption. Excluding continuances which Holleman requested or agreed to, Holleman was tried on the 128th day after his arrival in Illinois.

Of course, continuances not requested or agreed to by Holleman also can be excluded, if they were ordered "for good cause shown in open court, the prisoner or his counsel being present." To resist Holleman's motion, respondent must raise a genuine issue of fact suggesting that eight or more days of continuance were granted in accordance with this standard, but respondent has not done this. The court will assume that Holleman or his counsel was present when all continuances were granted, because of the "PP" notations, and because of the stipulation that Holleman demanded trial on April 21 and on all dates starting with July 27. (Tr. pp. 57-58.) Holleman's presence, or that of his attorney, satisfies only part of the standard, however, and there is not a shred of evidence in the record suggesting that any continuance was ordered upon a showing of good cause.

On respondent's motion for summary judgment, which the court denied on December 2, 1983, respondent focused on two court-ordered continuances, exclusion of either of which would have brought the unexcluded delay down to within the 120-day limitation. Respondent offered no direct evidence of the circumstances surrounding those continuances, but instead relied solely on a presumption of regularity. The court declined to indulge the suggested presumption of regularity, in part because there was no evidence in the record indicating what the regular procedures were for granting continuances in the Circuit Court of Cook County. Cf. Stroble v. Anderson, 587 F.2d 830, 839 (6th Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979) (informal procedures usually followed in trial court did not ensure compliance with Art. IV(c) in IAD cases). The court gave the parties leave to proceed with discovery. (Memorandum Opinion and Order of December 2, 1983.) On this motion respondent has not adduced any additional evidence. Holleman has demonstrated, beyond any genuine issue of material fact, that no continuance was accompanied by a finding of good cause, and that 128 days of continuance, none accompanied by a finding of good cause, were not requested or agreed to by him. Arguably, in the absence of a finding of good cause, this court could make an independent determination that good cause for a continuance had been shown (or existed). There is no evidence in the record, however, which would allow the court to make such an independent determination. It should be noted that "good cause" often has been construed strictly. In one case a district judge's crowded trial calendar was held not to constitute good cause in the absence of any attempt to reassign the IAD case to another judge who could try the case within the applicable 120-day limit. United States v. Ford, 550 F.2d 732, 743 (2d Cir. 1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). By summary judgment standards the court must find, as respondent apparently concedes, that the 120-day limitation of Art. IV(c) was violated. The trial court therefore was required to dismiss Holleman's indictment with prejudice under Art. V(c), which it did not do.


Holleman has established, by summary judgment standards, that his trial and conviction were in violation of Art. IV(c) of the IAD, but whether that violation will support the collateral relief he seeks is a more difficult question. Certain basic points are not in dispute. Holleman is in custody, as he is incarcerated in Indiana, serving his Illinois sentence concurrently with his Indiana sentence and with an unrelated federal sentence. (Tr. pp. 59-61.)*fn6 Although Holleman is incarcerated in Indiana, this district is an appropriate forum for his challenge to the lawfulness of his custody, insofar as he is in custody pursuant to his Illinois conviction. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Orito v. Powers, 479 F.2d 435, 437-38 (7th Cir. 1973). Respondent concedes that Holleman has no unexhausted state remedies available to him, for purposes of 28 U.S.C. § 2254(b) and (c). (Respondent's motion for summary judgment filed 4/11/83, ¶ 2.)

It is well settled that the IAD is a law of the United States for purposes of 28 U.S.C. § 2241(c)(3) and 2254(a), which authorize issuance of writs of habeas corpus when a prisoner is in custody in violation of the laws of the United States. Esposito v. Mintz, 726 F.2d 371, 372-73 (7th Cir. 1984); Neville v. Cavanagh, 611 F.2d 673, 675 n. 4 (7th Cir. 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980); Echevarria v. Bell, 579 F.2d 1022, 1024-25 (7th Cir. 1978); United States v. Ricketson, 498 F.2d 367, 372 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974). See also Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981) (IAD a law of the United States for purposes of 42 U.S.C. § 1983). It also is well settled, however, that not every violation of a law of the United States will support collateral relief. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Davis stated that errors of law will support collateral relief only if accompanied by some prejudice to the defendant, or if they are of a fundamental nature amounting to a miscarriage of justice, or if they present exceptional circumstances.*fn7 The courts of appeals are divided, probably into more than two camps, on the question of how Davis should be applied to IAD violations, and the Court of Appeals for the Ninth Circuit obviously suffers from internal division. The Court of Appeals for this Circuit has never addressed the question of how Davis applies to IAD violations. The facts of this case, as they appear by summary judgment standards, do not require the court to choose among the competing lines of cases, but it is necessary to discuss the different approaches taken by different courts.

Most favorable to Holleman's case is the position taken by the Third Circuit in United States v. Williams, 615 F.2d 585, 589-90 (3d Cir. 1980), which involved an anti-shuttling claim.*fn8 In applying Davis the Court considered the IAD's mandatory sanction of dismissal with prejudice to be dispositive:

  [T]he defense to the indictment is absolute under
  the Act when the Government violates Article IV.
  Under such circumstances,

  we fail to see how an alleged IADA violation
  would not be the type of "fundamental defect"
  cognizable in section 2255 proceedings. Although
  an IADA violation may have little if no [sic]
  bearing on the prisoner's guilt or innocence,
  nonetheless Congress chose to make the defense
  absolute when the Government violates the Act and
  we hold that it is precisely the "exceptional
  circumstances" making section 2255 relief

Id. at 590 (footnote omitted). Similar reasoning apparently was employed in Brown v. Wolff, 706 F.2d 902, 906 (9th Cir. 1983) (speedy trial), and Cody v. Morris, 623 F.2d 101, 102-03 (9th Cir. 1980) (speedy trial).

The court believes that the reasoning of Williams has much to commend it. Of course, the sanction to be imposed in the trial court or on direct review does not always govern on collateral review; if it did, all reversible error would support collateral relief. There are persuasive reasons, however, why the IAD's prescribed sanction of dismissal with prejudice should be considered dispositive, or at least should be given great weight, in determining the availability of collateral relief. These reasons generally are related to the fact that the IAD's prescribed sanction is quite extreme. It is difficult to think of another provision of federal law which imposes a mandatory sanction of dismissal with prejudice. Violations of the time limits of the federal Speedy Trial Act, for instance, require the court to dismiss the indictment or information, but the court may dismiss with or without prejudice, depending on its appraisal of the circumstances. 18 U.S.C. § 3162(a).*fn9

On the simplest level, the IAD's extreme sanction is important to a Davis analysis because it sets IAD violations off procedurally from virtually all other types of violations. Davis and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), which must be considered together with Davis, were concerned largely with the problem that 28 U.S.C. § 2255, which authorizes collateral relief from federal sentences, might appear to allow collateral relief based on any trial error, since every ruling in a federal prosecution is based on the laws of the United States. As the Court of Appeals for the Second Circuit has explained:

  [S]ince a literal reading would lead to the
  absurd conclusion that any non-harmless error in
  a federal criminal trial would provide grounds
  for collateral attack, the Supreme Court has
  provided a gloss [on] § 2255.

Edwards v. United States, 564 F.2d 652, 654 (2d Cir. 1977). Davis and Hill contemplated the vast array of reversible error which might be committed in a federal prosecution, and they suggested criteria be used in distinguishing between those errors meriting collateral relief and those errors not meriting collateral relief. Because of the IAD's prescribed sanction, IAD violations are not part of that vast array which Davis and Hill sought to divide and distinguish. On direct appeal the remedy for an IAD violation is not reversal and remand for a new trial; instead, it is reversal without the possibility of retrial. In this respect, the IAD's prescribed sanction places IAD violations largely outside the scope of the problem Davis and Hill addressed. Procedurally, IAD violations are "exceptional."

The IAD's mandatory sanction of dismissal with prejudice also carries a substantive importance for a Davis analysis. It is useful to consider another line of cases applying Davis to IAD violations. In Bush v. Muncy, 659 F.2d 402 (4th Cir. 1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 449 (1982), which involved an anti-shuttling violation, the Court focused on the nature of the particular statutory guarantee in question, explicitly rejecting Williams and placing no weight on the accompanying statutory sanction. The Court held that an anti-shuttling violation will not support habeas corpus relief, because the anti-shuttling provisions are "non-traditional statutory guarantees . . . that are peripheral to the historic central concerns with fundamental fairness in the prosecutorial and adjudicative processes leading to criminal conviction and confinement." Id. at 409. Similar reasoning is found in Carlson v. Hong, 707 F.2d 367 (9th Cir. 1983) (anti-shuttling); Hitchcock v. United States, 580 F.2d 964 (9th Cir. 1978) (anti-shuttling). As an initial matter it should be noted that Bush expressly reserved judgment as to whether violation of the IAD's speedy trial provisions would support collateral relief, since those provisions appear to protect rights different from those protected (or conferred) by the anti-shuttling provisions. 659 F.2d at 408 & n. 4. Carlson, in order to reconcile Ninth Circuit precedents, went further and stated that collateral relief is available for violations of the IAD's speedy trial provisions, because those provisions are grounded in the Sixth Amendment right to a speedy trial. 707 F.2d at 368. See also Tinghitella v. California, 718 F.2d 308, 310-11 (9th Cir. 1983). Along these lines Holleman cites Krilich v. United States, 502 F.2d 680 (7th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1429, 43 L.Ed.2d 673 (1975), wherein the Court stated:

  Non-compliance with a statute which has as one of
  its purposes the effectuation of a constitutional
  right presents an issue of sufficient
  constitutional dimension to warrant consideration
  under 28 U.S.C. § 2255.

Id. at 682 (footnote citing Davis omitted). Krilich involved the Jencks Act, 18 U.S.C. § 3500, which the Court described as "a vehicle for effectuating and enhancing the defendant's constitutional right of confrontation." 502 F.2d at 683 n. 3. The IAD's speedy trial provisions similarly give effect to and enhance the Sixth Amendment speedy trial guarantee, which, the Supreme Court has held, extends to defendants incarcerated on other charges. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

Emphasizing the nature of the particular right involved, and searching for historical or constitutional associations, tends to support the conclusion that a violation of Art. IV(c) is a fundamental error, justifying collateral relief. The court believes, however, that it is a mistake to attempt to appraise a statutory guarantee only from a historical or constitutional perspective, without giving any weight to the statutory sanction accompanying that guarantee. In Bush the anti-shuttling provisions are subjected to a Davis analysis stripped of the legislative judgment implicit in the selection of an unusually strong sanction. Bush looks solely at the nature of the statutory right in question, and, since it is "non-traditional," considers whether it is close to "the historic central concerns with fundamental fairness in the prosecutorial and adjudicative processes leading to criminal conviction and confinement." 659 F.2d at 409. It cannot be denied that this perspective is important to a Davis analysis, and indeed the Court of Appeals for this Circuit, in holding collateral relief unavailable under Davis, has relied on the fact that a statutory exclusionary rule was unrelated to the essential question of guilt or innocence. Hussong v. Warden, Wisconsin State Reformatory, 623 F.2d 1185, 1191 (7th Cir. 1980). This should not mean, however, that other factors should not be considered when present. Nothing in Davis, or in the problem addressed in Davis, or in the Seventh Circuit's application of Davis in Hussong, calls for ignoring the exceptional circumstance that legislative judgment has selected an extreme mandatory sanction of dismissal with prejudice; rather, generous reliance on this important datum seems to be dictated by Davis' general purpose of separating the wheat from the chaff in determining the availability of collateral relief.

It may be tempting to consider the IAD as only marginally a law of the United States, and therefore as not really reflecting federal policy, but the court believes that such a view has been foreclosed by the Supreme Court. In Cuyler v. Adams, over Justice Rehnquist's persuasive dissent, the Court held that the IAD is a law of the United States, conferring rights protectible under 42 U.S.C. § 1983. 449 U.S. at 450, 101 S.Ct. at 713. It also may be tempting to consider the IAD's seemingly disproportionate sanction as a quirk of some kind, not really embodying any particular legislative judgment. This too would be wrong. The IAD addresses very serious problems which prevailed under the previous informal and varying state practices with respect to detainers. Not only did the former detainer practices result in serious infringement of prisoners' rights, but they also substantially impeded prison officials' ability to use the period of incarceration to rehabilitate prisoners. The Supreme Court has described the harms that the IAD was intended to prevent or minimize: United States v. Mauro, 436 U.S. 340, 349-50, 353, 355 n. 23, 358 n. 25, 359-60, 98 S.Ct. 1834, 1841-42, 1843, 1845 n. 23, 1846 n. 25, 1846-47, 56 L.Ed.2d 329 (1978). When a statutory right is created, the statutory scheme for protecting that right, including the sanction to be imposed for violation, is an important indication of the weight that right is to carry. The IAD's selection of an extreme sanction should not be ignored in a Davis analysis. The court considers this factor, and accords it great weight.

Further, even from a historical perspective the IAD's prescribed sanction should be given some weight. Because dismissal without prejudice absolutely bars trial, it partakes somewhat of a jurisdictional character. Cf. Neville v. Cavanagh, cited above, 611 F.2d at 679 & n. 7 (Cudahy, J., dissenting: "It is fairly arguable at least that the facially categorical requirements of Article IV(e) of the Detainers Act are `jurisdictional.'"). It seems to be agreed that IAD violations are not jurisdictional, in the sense that defendants may waive their IAD defenses. E.g., United States v. Johnson, 713 F.2d 633, 653 (11th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); United States v. Odom, 674 F.2d 228, 230 (4th Cir.) cert. denied, 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982); United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978). Assuming that IAD violations do not truly amount to jurisdictional defects, they still resemble jurisdictional defects, because they go not to the question of how a defendant should be tried, but instead to the question of whether the defendant should be tried at all. The IAD's prescribed sanction of dismissal with prejudice therefore is evocative of a category of error historically subject to correction by writ of habeas corpus. E.g., Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939).

A third class of cases seems to focus less on the particular right involved and more on the particular facts of a given case. These opinions indicate, more or less clearly, that an IAD violation may support collateral relief, but only if additional factors are present. These cases do not make a point of distinguishing between the IAD's speedy trial provisions and its anti-shuttling provisions. Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980) (speedy trial and anti-shuttling); Fasano v. Hall, 615 F.2d 555 (1st Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980) (speedy trial and anti-shuttling); Huff v. United States, 599 F.2d 860 (8th Cir.), cert. denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979) (anti-shuttling); Edwards v. United States, 564 F.2d 652 (2d Cir. 1977) (anti-shuttling).*fn10 The most obvious type of additional factor would be some actual prejudice to the prisoner. E.g., Shigemura v. United States, 726 F.2d 380, 381 (8th Cir. 1984). Davis itself refers to prejudice as a relevant factor. 417 U.S. at 346, 94 S.Ct. at 2305. While Holleman may or may not have suffered actual prejudice from the Illinois authorities' delay, including the delay the violated Art. IV(c) of the IAD, he has not demonstrated prejudice by summary judgment standards, so the court must assume, on the present motion, that he suffered no actual prejudice.

Apart from prejudice, two other types of additional factors have some relevance in Holleman's case. In Fasano it was suggested that an "egregious" violation might support collateral relief. 615 F.2d at 558. By summary judgment standards Holleman has demonstrated only an eight-day violation of Art. IV(c), so in one sense the violation is not egregious. In another sense, however, the record does disclose an egregious violation. The record shows clearly that no finding of good cause ever was made in connection with any continuance ordered in Holleman's case. The record discloses no procedure at all for ensuring compliance with the applicable IAD speedy trial provision.*fn11 This is not a case in which a federal court is asked to second-guess a finding of good cause — in which case § 2254(d) would be an almost insurmountable obstacle — or even a case in which the trial court failed on one or two occasions to enter a finding of good cause, while generally adhering to the requirements of the IAD. The requirements of the IAD simply were not observed at all, until there already had been a violation; and then, the violation was not remedied.

The Mars case suggested a third type of additional factor which might justify collateral relief. The Court stated that collateral relief might be available "where petitioner can show . . . that his IAD rights properly asserted before the trial court were not properly vindicated." 615 F.2d at 707 n. 9. Of course, the distinction between direct review and collateral review would be erased if collateral review were available any time a claim was rejected on direct review. On the other hand, the distinction falls by itself when a claim is presented in the trial court and on direct review and simply is ignored. In such a case the absence of any meaningful direct review would constitute an "exceptional circumstance" justifying full collateral relief under Davis. Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (availability of collateral review of Fourth Amendment claim turns on whether state court afforded full and fair opportunity for a hearing).

In its memorandum opinion and order of December 2, 1983, the court rejected respondent's contention that Holleman had waived his claim under Art. IV(c) by failing to present it to the state courts. The court's ruling was based on this passage from Mauro:

  The record shows that from the time he was
  arrested Ford persistently requested that he be
  given a speedy trial. After his trial date had
  been continued for the third time, he sought the
  dismissal of his indictment on the ground that
  the delay in bringing him to trial while the
  detainer remained lodged against him was causing
  him to be denied certain privileges at the state
  prison. We deem these activities on Ford's part
  sufficient to put the Government and the District
  Court on notice of the substance of his claim.

436 U.S. at 364-65, 98 S.Ct. at 1849. In Mauro, Ford apparently did not even cite the IAD, and he was held not to have waived his IAD claim. As held by the court on December 2, 1983, Holleman met the standard set in Maruo. Moreover, while Holleman did not present the state courts with the precise Art. IV(c) argument he makes to this court, he went far beyond what is required by Mauro to avoid waiver. Holleman gave the state courts such abundant notice of the claim considered on this motion that their failure to recognize it and rule upon it may be considered an exceptional circumstance.

Holleman's two arguments on direct appeal were raised, along with additional arguments, in the trial court. First, Holleman argued that more that 120 days of delay not attributable to him had accumulated since his arrival in Illinois, in violation of the Illinois Speedy Trial Act, ch. 38, ¶ 103-5(a). The State and the Illinois courts agreed that more than 120 days had accumulated; Holleman's argument was rejected only because it was held that the accumulation of more than 120 days did not violate the Act.*fn12 Second, Holleman argued that the 120-day speedy trial provision of Art. IV(c) had been violated. Holleman did not argue, however, that the accumulation of more than 120 days of delay constituted a violation of Art. IV(c). Instead, he argued that Illinois authorities circumvented the 120-day limitation, and therefore should be held to have violated it, by their delay in accepting custody after it was offered by Indiana authorities. Thus, Holleman argued extensively, and it was conceded on all sides, that more than 120 days of delay had accumulated; at the same time, he argued that there had been a violation of Art. IV(c), which required that he be brought to trial within 120 days. Holleman simply (and inexplicably) failed to combine these two arguments into the one he makes before this court, and neither the State nor the trial court nor the appellate court combined the two arguments for him.*fn13

Attached hereto as Appendix B is a compilation of quotations from papers and argument before the trial court, from papers before the appellate court, and from the opinion of the appellate court, referring to the accumulation of 120 days of delay or to the 120-day limit of Art. IV(c). They are taken out of context, but even with this in mind they demonstrate that the Illinois courts were given elaborate notice that Holleman had a valid IAD claim which required dismissal of his indictment with prejudice. It may be understandable that the trial court failed to perceive that Holleman had a valid claim, because the trial judge heard arguments filled with dates and time computations and then immediately ruled from the bench. It is less understandable how the appellate court could have failed to notice the IAD violation. All that is necessary to establish the violation of Art. IV(c) — both the conceded facts and the applicable provision of law — appear plainly, not only from the record before the appellate court, but also from the written opinion of the appellate court itself. It certainly was well within the power of the appellate court to address the argument Holleman makes to this court, even though it is slightly different from that he made to the Illinois courts. Hux v. Raben, 38 Ill.2d 223, 225, 230 N.E.2d 831, 832 (1967); see also Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). Under the circumstances, the court believes that a certain fundamental fairness would be lacking if this court too failed to vindicate Holleman's federal rights. A defendant's rights should not be forfeited forever by his counsel's failure to formulate a clearly meritorious argument in precisely the right way, when there is but a "very fine shade of difference between the grounds asserted." People v. Hawkins, 34 Ill. App.3d 566, 569, 340 N.E.2d 223, 225 (1st Dist. 1975).

As discussed above, these factors support the conclusion that Holleman is entitled to relief under Davis: the IAD's mandatory sanction of dismissal with prejudice, which should have been applied in Holleman's case but was not; the traditional concern with speedy trial rights, evidenced by the Sixth Amendment speedy trial guarantee, which informs the speedy trial provision of Art. IV(c) of the IAD; the absence, reflected in the record, of any procedures for ensuring compliance with the IAD's speedy trial provisions, and of any effort to comply with the applicable provisions; and the failure of the Illinois courts to recognize and rule upon Holleman's claim, given the abundant — if imperfect — notice of his claim which they were given.

Weighing against the availability of collateral relief is the irrelevance of Holleman's claim to the question of his guilt or innocence. On this motion, at least, Holleman has not challenged the integrity of his trial — a bench trial on a stipulated record — or suggested that he did not participate in the murder of Scott Moore. A claim not going to guilt or innocence is less likely to support collateral relief under Davis. E.g., Hussong, cited above, 623 F.2d at 1191. Again, however, the IAD's mandatory sanction of dismissal with prejudice distinguishes IAD violations. Most claims not going to guilt or innocence relate to rules affecting the course of trial, for instance by excluding certain evidence. Such rules may result in acquittal of the guilty in some cases, but this is not their necessary effect; they are not rules which bar trial absolutely. The IAD does bar trials absolutely. Holleman should not have been tried at all. Under these circumstances, the irrelevance of his claim to his guilt or innocence weighs less heavily against collateral relief than it would if he merely were challenging the admission of certain evidence at his trial. Upon consideration of all the factors discussed above, the court concludes that Holleman is entitled to collateral relief.


Accordingly, the court grants petitioner Holleman's motion for summary judgment. An appropriate writ of habeas corpus shall issue to respondents Lane and Duckworth, directing them to release Holleman from custody only insofar as his custody is pursuant to the judgment of the Circuit Court of Cook County, Illinois, in No. 77-3900, People v. Holleman. The writ shall not impair Holleman's incarceration pursuant to his Indiana conviction or his federal conviction.

It is so ordered.


Analysis of time from Holleman's arrival in Illinois until his trial.

  Dates                Explanation          Days of accumulated
                                            delay not attributable
                                            to Holleman

3/28 to 3/30     No explanation in record.              2

3/30 to 4/12     Ambiguous; motion of
                 State or motion by
                 defendant. (Half-sheet,
                 pp. 1. 2.)*fn1                        -

4/12 to 4/20     Order of court.
                 (Half-sheet, p. 1.)*fn2               -

4/20 to 4/21     Defendant's motion. (Half-sheet,
                 p. 1.)*fn3                            -

4/21 to 5/15     Order of court; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 p. 58.)                               26

5/15 to 5/31     By agreement. (Half-sheet, p. 1.)      -

5/31 to 6/16     By agreement. (Half-sheet, p. 1.)      -

6/16 to 7/18     By agreement. (Half-sheet, p. 1.)      -

7/18 to 7/27     By agreement. (Half-sheet, p. 1.)      -

7/27 to 8/16     Order of court; trial demand by
                 defendant. (Half-sheet, p. 2;
                 tr. pp. 57-58.)                       46

8/16 to 8/29     Motion of State; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 pp. 57-58.)                           59

8/29 to 9/13     Motion of State; trial demand by
                 defendant. (Half-sheet, p. 1;
                 tr. pp. 57-58.)                       74

9/13 to 10/2     Motion of State; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 pp. 57-58.)                           93

10/1 to 10/10    Order of court; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 pp. 57-58.)                          101

10/10 to 10/18   Motion of State; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 pp. 57-58.)                          109

10/18 to 10/30   Motion of State; trial demand by
                 defendant. (Half-sheet p. 1; tr.
                 pp. 57-58.)                          121

10/30 to 11/6    Motion of State; trial demand by
                 defendant. (Half-sheet p. 3; tr.
                 pp. 57-58.)*fn4                     128

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