Diggs alleges that the state violated the IADA by allowing his return to federal custody after he was arraigned in Dauphin County, without first trying him on the murder and kidnap charges. The sequence of Diggs' transfers between federal and state custody is detailed in the trial court's opinion, Commonwealth v. Diggs, 100 Dauph. 318, 319-20 (1978), and in pages 10-14 and 18-20 of the magistrate's report, and will not be repeated.
This court accepts the magistrate's finding that the capiases and warrants which were forwarded by the Dauphin County district attorney to the City of Philadelphia and the United States Marshal for the Eastern District of Pennsylvania in May of 1976 were "detainers".
Report of Magistrate, 9-15. The court similarly agrees with the magistrate that under United States v. Mauro,2 436 U.S. 340, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978), where, as here, a detainer has been lodged, a subsequently issued writ of habeas corpus ad prosequendum is a written request for temporary custody which triggers the terms of Article IV(e) of the IADA. Report of Magistrate, 16-17. However, the magistrate failed to take cognizance of the Third Circuit's holding that "no retroactive effect should be given to Mauro in this circuit". United States v. Williams, 615 F.2d 585, 593 (3d Cir. 1980). Therefore, even if the transfer of Diggs from state to federal custody prior to his trial for murder and kidnapping violated the terms of Article IV(e) of the IADA -- a question this court need not decide -- Diggs may not invoke the IADA as a ground for relief because the alleged violation took place prior to the Mauro decision.
The significant facts in Williams are indistinguishable from the facts of the instant case. Williams was on a pre-release program from a Pennsylvania State Correctional Institution when he was arrested on federal charges of bank robbery and assault with a deadly weapon. Upon his arrest, he was returned to the state prison and a federal detainer was lodged with the state prison officials. On three occasions subsequent to the filing of the detainer but prior to trial, Williams was taken from the state prison to federal court pursuant to writs of habeas corpus ad prosequendum and returned to state custody. All of the transfers took place in 1976. Williams, 615 F.2d at 587.
Following his conviction on the federal charges, Williams filed a motion for collateral relief under 28 U.S.C. § 2255. Williams claimed, among other things, that Article IV (e) of the IADA was violated when he was transferred from federal to state custody without being brought to trial on the federal charges. The district court dismissed the motion.
The Third Circuit affirmed dismissal of the IADA claim. The court acknowledged that under Mauro, the transfers of Williams pursuant to writs of habeas corpus ad prosequendum following the filing of a detainer would violate Article IV(e) of the IADA. However, the court held that Mauro may not be applied retroactively and therefore found there was no IADA violation because the transfers of Williams took place prior to the decision in Mauro. Williams, 615 F.2d at 593. Other circuits which have considered the issue have similarly refused to give Mauro retroactive effect. Greathouse v. United States, 655 F.2d 1032 (10th Cir. 1981), cert. denied, 455 U.S. 926, 71 L. Ed. 2d 469, 102 S. Ct. 1289 (1982); United States v. Hill, 622 F.2d 900 (5th Cir. 1980); Brown v. Mitchell, 598 F.2d 835 (4th Cir. 1979), cert. denied, 449 U.S. 1123, 67 L. Ed. 2d 109, 101 S. Ct. 939 (1981).
As in Williams, the transfers of Diggs which are alleged to have violated the IADA preceded the Mauro decision. Because Mauro may not be applied retroactively, the transfer of Diggs did not violate the IADA.
Diggs agrees that Mauro may not be applied retroactively. He argues, however, that if his claim is evaluated under the law prior to Mauro, Article IV(e) of the IADA was violated. Diggs asserts that at the time of his transfers, Third Circuit decisions held that transfers of custody pursuant to writs of habeas corpus ad prosequendum were "detainers" governed by the IADA.
Diggs' argument is meritless. First, the Third Circuit in Williams expressly refused to grant collateral relief for a claimed IADA violation premised on the use of a writ of habeas corpus ad prosequendum prior to Mauro. In holding that Mauro was not to be applied retroactively, the court adopted the reasoning of the Fourth Circuit in Brown v. Mitchell, 598 F.2d 835 (4th Cir. 1979), which had similarly held that no retroactive effect should be given Mauro. One of the reasons the Fourth Circuit refused to apply Mauro retroactively was that the unsettled state of the law prior to Mauro had led prosecutors to reasonably rely on the use of writs of habeas corpus ad prosequendum to obtain custody of prisoners for pretrial proceedings. Brown, 598 F.2d at 838-39. The Williams court agreed that "the unsettled state of the law prior to Mauro, and the potential burden retroactivity would place on the administration of criminal justice especially militate against retroactive application of the Mauro decision." Williams, 615 F.2d at 593. The court therefore held that the IADA claim grounded on the use of writs of habeas corpus ad prosequendum could not be a basis for collateral relief. Williams, 615 F.2d at 594.
Secondly, the law of the circuit at the time of Diggs' transfers would not afford him relief under the IADA. The transfers which are alleged to constitute the IADA violation took place in January and February of 1977. The Third Circuit did not hold that writs of habeas corpus ad prosequendum were "detainers" within the IADA until August 22, 1977, in its en banc decision United States v. Sorrell, 562 F.2d 227 (3d Cir. 1977), cert. denied, 436 U.S. 949, 56 L. Ed. 2d 793, 98 S. Ct. 2858 (1978). In response to Judge Garth's dissenting argument that the opinion would result in vacating sentences of hundreds of persons, the Sorrell court expressly noted that "there seems little justification for retroactive application of the statutory construction ultimately adopted, through collateral attack. . . ." Sorrell, 562 F.2d at 231. The court reasoned that its opinion could not be applied retroactively because "this issue can well be considered as 'an issue of first impression whose resolution was not clearly foreshadowed.'" Sorrell, 562 F.2d at 231 n.66.
For the foregoing reasons, the magistrate's recommendation that Article IV(e) of the IADA has been violated is rejected. Because the magistrate recommended granting petitioner's writ of habeas corpus for violation of Article IV(e) of the IADA, he did not address the remaining grounds of relief lodged by the petition. Report of Magistrate, 27. This court therefore will remand the case to the magistrate for consideration of the other grounds for relief asserted in the petition for a writ of habeas corpus. The court notes that the magistrate's initial report was not issued until more than two and one-half years after the petition was referred to him by this court. Because petitions for writ of habeas corpus are to be given priority, Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. § 2254, the court will direct the magistrate to expedite his disposition of the petition.
[EDITOR'S NOTE: PAGINATION IN THE HARD COPY SOURCE ENDS AT THIS POINT.]
In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:
1. The recommendation of the magistrate that the petition of Charles Diggs for a writ of habeas corpus be granted for violation of Article IV(e) of the Interstate Agreement on Detainers Act, 42 Pa. C.S. § 9101, is rejected.
2. This case is remanded to the magistrate for consideration of the remaining grounds for relief alleged in the petition for a writ of habeas corpus. The magistrate is directed to give the petition priority and expeditiously issue a report addressing the remaining claims.