The opinion of the court was delivered by: RAMBO
SYLVIA H. RAMBO, United States District Judge
A. Background and Procedural History
This matter is before the court on the petition for writ of habeas corpus filed by Charles Diggs (Diggs) attacking a judgment of conviction for kidnapping and first degree murder entered in the Court of Common Pleas of Dauphin County, Pennsylvania in 1978. Diggs' motions for a new trial and arrest of judgment were denied by the trial court. Commonwealth v. Diggs, 100 Dauph. 318 (1978). The Pennsylvania Superior Court affirmed the lower court. Commonwealth v. Diggs, 273 Pa. Super. 121, 416 A.2d 1119 (1979). The Supreme Court of Pennsylvania initially granted Diggs' Petition for Allowance of Appeal. However, following briefing and oral argument, the Supreme Court in a per curiam order dismissed the appeal as having been improvidently granted. On March 30, 1983, Diggs filed a petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254. The petition was immediately referred to the magistrate.
Diggs' petition for a writ of habeas corpus claims eight grounds for relief. The first ground alleged is that Pennsylvania violated Articles IV(c) and IV(e) of the Interstate Agreement on Detainers Act (IADA), 42 Pa. C.S. § 9101. On January 15, 1986, the magistrate issued a report which recommended that Diggs' petition for a writ of habeas corpus be granted because Article IV(e) of the IADA has been violated. The magistrate did not address the claimed violation of Article IV(c) of the IADA or any of the other seven grounds for relief raised in the petition.
On January 27, 1986, the Commonwealth filed exceptions to the magistrate's recommendation. The Commonwealth challenges the magistrate's finding of a violation of Article IV(e) of the IADA, and further avers that Diggs failed to completely exhaust state remedies. On February 5, 1986, Diggs filed an Answer to the Commonwealth's exceptions.
This court's record did not contain documents of the state court proceedings which were necessary to enable the court to assess whether Diggs had exhausted his state remedies. Therefore, on February 5, 1986, this court ordered that it be furnished with a copy of documents Diggs filed with the Supreme Court of Pennsylvania. On February 20, 1986, Diggs filed with this court his Supreme Court briefs as well as two pro se briefs which he had filed in the Pennsylvania Superior Court.
Upon a review of the state court record, the court adopts the magistrate's finding that Diggs has exhausted his state court remedies prior to requesting habeas corpus relief in this court. Report of Magistrate, 2-6. However, the court rejects the magistrate's recommendation that Article IV(e) of the IADA has been violated. The case therefore will be remanded to the magistrate for expeditious consideration of the remaining grounds for relief raised in Diggs' petition which were not addressed in the initial Report of Magistrate.
Diggs' petition claims that Pennsylvania violated Article IV (e) of the IADA, 42 Pa. C.S. § 9101, which provides in pertinent part:
If trial is not had on any indictment . . . prior to the prisoner's being returned to the original place of imprisonment . . . such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
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 ...