The opinion of the court was delivered by: LUONGO
Shortly after commencement of his fifteen to twenty year prison term at New Jersey's Rahway State Prison, relator Murray Shack received formal notice that the Commonwealth of Pennsylvania had requested his presence for prosecution on unrelated offenses. Without the benefit of a hearing to determine the validity of Pennsylvania's summons, Shack was then extradited to Pennsylvania where he was tried and convicted of robbery and conspiracy. Now claiming that his right to a pre-transfer hearing under the Interstate Agreement on Detainers (IAD) was violated, relator seeks release from Pennsylvania's custody by writ of habeas corpus. Because I conclude that such a violation, if established, would not entitle Shack to relief under 28 U.S.C. § 2254, I will deny the writ.
The parties generally agree that the following scenario unfolded in 1979: On May 11, 1979, Murray Shack appeared for sentencing before a New Jersey trial judge who committed Shack to custody at Rahway State Prison for fifteen to twenty years. At sentencing, Shack was informed by the court that a detainer had been lodged against him, requiring his presence at Delaware County, Pennsylvania. On July 11, 1979, a night social worker at Rahway served upon the relator a copy of Delaware County's request for temporary custody pursuant to Article IV of the IAD. Shack was transported to Pennsylvania's Broadmeadows Prison on September 14, 1979, and on November 20, 1979 a jury found Shack guilty of robbery and conspiracy.
The parties dispute whether Shack invoked or waived his right to a pre-transfer hearing before his removal to Broadmeadows Prison. Relator claims that he refused to sign a waiver of extradition form proffered by Rahway's social worker at the time of service of Pennsylvania's IAD request; that he informed the social worker of his desire for a hearing; and that he renewed that request on September 14, 1979 before his transfer to Pennsylvania's custody. A response filed by the District Attorney of Delaware County denies relator's allegations. In support of their position, respondents refer to findings of fact made by a state trial court which rejected Shack's petition for habeas corpus. In relevant portion, the state court found that Shack did not communicate his desire for an extradition hearing to the social worker, and that the social worker neither discussed Shack's right to a hearing, nor "interpreted the manner of his removal from New Jersey to Pennsylvania." For present purposes, I will accept as true Shack's version of the facts.
Accorded a generous reading under the rule of Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Shack's pro se challenge to his Pennsylvania confinement proceeds on a twofold theory: he argues that deprivation of his right to a pre-transfer hearing, without more, renders his conviction vulnerable to attack under 28 U.S.C. § 2254.
He argues further that, because he was transferred to Pennsylvania improperly, he should have been returned to New Jersey for a hearing, but that the very act of returning him to New Jersey would have discharged with prejudice Pennsylvania's criminal action against him under Article IV(e) of the IAD.
There is no merit in Shack's assertion that Pennsylvania lacked personal jurisdiction to prosecute him because of New Jersey's failure to conduct a pre-transfer hearing. It has long been established that the use of illegal means of extradition does not impair the receiving state's power to try a criminal defendant in a proceeding which is itself untainted by constitutional error. Ker v. Illinois, 119 U.S. 436, 30 L. Ed. 421, 7 S. Ct. 225 (1886). The Supreme Court reaffirmed that principle in Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1952). There the Court refused habeas relief to a Michigan prisoner who claimed that "while he was living in Chicago, Michigan officers forcibly seized, handcuffed, blackjacked and took him to Michigan." 342 U.S. at 520. Writing for a unanimous Court, Justice Black refused to void the criminal conviction because of the allegedly unlawful extradition:
This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 30 L. Ed. 421, 7 S. Ct. 225, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.
342 U.S. at 522 (footnote omitted).
In accord with this reasoning is United States ex rel. Huntt v. Russell, 285 F. Supp. 765 (E.D. Pa. 1968), aff'd 406 F.2d 744 (3d Cir. 1969) (per curiam). In Huntt, the Court of Appeals for the Third Circuit affirmed the denial of a writ of habeas corpus sought by a prisoner who claimed, inter alia, that he was deprived of his right to appointed counsel at an extradition hearing. The district court opinion in Huntt relied upon Frisbie, and held that "illegal extradition does not afford a basis for relief by way of habeas corpus." 285 F. Supp. at 767. Accord Myers v. Rhay, 577 F.2d 504, 510 (9th Cir.), cert. denied, 439 U.S. 968, 58 L. Ed. 2d 427, 99 S. Ct. 459 (1978).
In short, Supreme Court and Third Circuit precedents establish that illegal extradition does not deprive the receiving sovereign of personal jurisdiction over criminal defendants so transmitted. Shack's claim that Pennsylvania lacked power to ...