Article III of the Agreement prescribes the procedure by which a prisoner may request prompt disposition of outstanding charges. The state must bring an inmate to trial within 180 days after its receipt of a proper request for disposition under Article III. Its failure to do so requires dismissal of the indictment by the appropriate court of the jurisdiction where the indictment has been pending.
The authorities of the jurisdiction where the charges are pending may proceed under the provisions of Article IV of the Agreement in order to obtain custody of the prisoner. Under Article IV the state official must present a written request for temporary custody to the appropriate authorities of the state where the prisoner is incarcerated. The prisoner must be brought to trial within 120 days of arrival in the receiving state or the charges must be dismissed under Article V(c).
Petitioner contends that Article III requests were made as early as January of 1979 but has not produced evidence of such. However, petitioner has produced three letters purporting to be requests for transfer under Article III. These letters were dated August 20, 1979, October 12, 1979 and November 14, 1979; 180 days from the last letter expired on May 12, 1979. If these letters constituted proper requests for disposition (and thus triggered the time limitations of Article III), petitioner's New Jersey trial on December 1, 1980 was untimely. If the letters were not sufficient to invoke Article III, Article IV was operative and petitioner was timely tried within 120 days of his arrival in New Jersey.
Before the merits of the petition are reached, a federal court must consider whether petitioner has exhausted state remedies. Exhaustion is required in habeas cases as a matter of comity in order to give state courts the initial opportunity to correct their own errors. See, e.g., Paullett v. Howard, 634 F.2d 117 (3d Cir. 1980). In this case, proceedings in both Pennsylvania and New Jersey are challenged and we must decide whether the remedies in each have been exhausted.
In Pennsylvania, petitioner by writ of habeas corpus challenged the validity of a third New Jersey detainer. Judge William W. Vogel entered an Order in the Court of Common Pleas for Montgomery County which denied Johnson's petition for habeas corpus, held the third New Jersey detainer valid (notwithstanding dismissal of the second detainer with prejudice by Judge Smillie), and ordered the petitioner transferred to New Jersey. It was only then that New Jersey authorities took custody of petitioner and transported him to New Jersey. Judge Vogel subsequently granted a petition for supersedeas and requested the New Jersey authorities to return petitioner to Pennsylvania for a determination of the validity of the detainer by the Pennsylvania Superior Court. New Jersey authorities refused to honor this request and petitioner was held in New Jersey and tried on the New Jersey charges. Therefore, petitioner can no longer seek relief preventing his return to New Jersey for trial from the Pennsylvania courts; this is conceded by counsel for Pennsylvania and New Jersey officials. Petitioner has been deprived of the opportunity for further exhaustion of habeas remedies in Pennsylvania.
Petitioner does have remedies still available to him in New Jersey. Petitioner challenged the validity of the New Jersey indictment under both Article III and Article IV of the Agreement by a pretrial motion to dismiss. Judge Mary Ellen Talbott denied this motion in an Opinion dated October 20, 1980. This ruling together with other challenges may be reviewed on the appeal from the subsequent conviction which is now pending in the New Jersey Superior Court, Appellate Division.
At the conference of counsel held before this court it was represented that the New Jersey appellate courts would not reach the matter on the present record for at least six months if not longer. In addition, all parties agreed that the record before this court contains correspondence relevant to the Article III issue that was not part of the record considered by Judge Talbott.
Thus, there was the likelihood that the New Jersey appellate courts would remand the matter to the trial court for further proceedings and there would be even more delay in the state courts. Because of this potential delay and because of the new evidence, counsel for New Jersey conceded the need for an evidentiary hearing.
The prosecutor's concession regarding the need for evidentiary findings is relevant to our determination that special circumstances were present which required the court to make additional findings of fact before deciding whether the merits of petitioner's contentions could be addressed. 28 U.S.C. § 2254(d) (1), (2) and (3). We recognize that state prosecutors cannot waive the requirement of exhaustion, United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), and do not rely on this waiver to excuse petitioner from resorting to available state remedies.
Petitioner is now paroled on his Pennsylvania sentence and remains in custody only by reason of the New Jersey conviction. New Jersey seeks immediate custody of a person who would not now be in custody were it not for proceedings in Pennsylvania and New Jersey, which are still subject to challenge by the petitioner in the courts of New Jersey. Petitioner asserts Judge Talbott's denial of petitioner's motion in New Jersey Superior Court to dismiss the pending New Jersey indictments (on the ground of non-compliance with the Agreement) was incorrect and that the proceedings before Judge Vogel removing him to New Jersey placed him in double jeopardy because a prior detainer seeking to remove him to New Jersey had already been dismissed by Judge Smillie. But the New Jersey Supreme Court may review not only the events that occurred at trial but whether the trial should have been held at all.
A federal habeas corpus petitioner has the burden of proving that he has met the procedural requisites that entitle him to relief.
The statutory exhaustion requirement provides that a federal court shall not grant a state prisoner's petition for habeas corpus "unless it appears that the applicant has exhausted the remedies available in the courts of the State.' 28 U.S.C. § 2254 (1976). The requirement is not jurisdictional, but is rooted in the policy of federal-state comity. See, e.g. United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir. 1969), cert. denied, 397 U.S. 1051 (90 S. Ct. 1388, 25 L. Ed. 2d 665) (1970). It represents "an accommodation of our federal system designed to give the State the initial "opportunity to pass upon and correct" alleged violations of its prisoners' civil rights.' Wildwording v. Swenson, 404 U.S. 249, 250 (92 S. Ct. 407, 409, 30 L. Ed. 2d 418) (1971) (per curiam) (quoting Fay v. Noia, 372 U.S. 391, 438 (83 S. Ct. 822, 848, 9 L. Ed. 2d 837) (1963)).
Brown v. Cuyler, 669 F.2d 155 at 157 (3d Cir. 1982). See also, Lovell v. Arnold, 391 F. Supp. 1047 (M.D.Pa.1975).
So long as his appeal is pending in the New Jersey Supreme Court, comity requires that a determination be made by it. Unless extended delay in the state process renders that process ineffective to protect the rights of a prisoner,
it is only after there has been adherence to the exhaustion requirement and the petitioner in state custody can demonstrate that the state court of last resort has expressly decided the issues he raises in his petition that they may be decided in a federal court.
Therefore, the habeas petition will be denied. However, the order permitting petitioner to be removed to New Jersey will be stayed to permit petitioner to request a stay from the Court of Appeals if he so chooses. If petitioner files a timely request for stay, the temporary stay of this court shall remain in effect until the Third Circuit acts on such stay has been timely requested.