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UNITED STATES EX REL. HOLLEMAN v. DUCKWORTH

July 31, 1984

UNITED STATES OF AMERICA EX REL. ROBERT HOLLEMAN, PETITIONER,
v.
JACK DUCKWORTH, ET AL., RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

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.

I.

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:

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.

II.

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.

III.

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:


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