Shack, Murray, Appellant, v. the Attorney General of the State of Pennsylvania, Warden Ofrahway State Prison, New Jersey, District Attorneyof Delaware County, 776 F.2d 1170 (3d Cir. 1985)

This is an appeal from a final judgment of the United States District Court for the Eastern District of Pennsylvania denying appellant habeas corpus relief. We affirm.

On May 11, 1979, appellant Murray Shack, having been convicted of a New Jersey criminal offense, was sentenced to a term of imprisonment. Pennsylvania authorities then lodged a detainer against Shack on the basis of an arrest warrant issued for a Pennsylvania offense. On September 14, 1979, Shack was transferred from New Jersey to stand trial in Pennsylvania. Prior to this transfer, no hearing was conducted as required by New Jersey's Uniform Criminal Extradition Act, N.J.Stat.Ann. Sec. 2A:160-18 (West 1971), and the Interstate Agreement on Detainers ("IAD"), N.J.Stat.Ann. Sec. 2A:159A-4 (West 1971), which has been held to incorporate the hearing requirement of the Extradition Act. Cuyler v. Adams, 449 U.S. 433, 448, 101 S. Ct. 703, 711, 66 L. Ed. 2d 641 (1980).

After transfer to Pennsylvania and prior to trial, Shack sought habeas corpus relief in the Court of Common Pleas and, subsequently, in the federal district court. Relief was denied by the state court on the ground that he had waived his right to a pre-transfer hearing and by the federal court on the ground that he had failed to exhaust his state remedies. The district court, 593 F. Supp. 1329, certified that there was no probable cause for appeal and this court denied a motion to issue a certificate of probable cause for appeal.

On November 20, 1979, Shack was found guilty of the Pennsylvania offense and was sentenced by a Pennsylvania court to a term of imprisonment which he is currently serving. Following sentencing in Pennsylvania and exhaustion of his state remedies, Shack again unsuccessfully sought federal habeas corpus relief.

Shack advances two theories, both of which are predicated on the failure of New Jersey to provide him a pre-transfer hearing during the extradition proceedings. The first is that this defect in those proceedings deprived Pennsylvania of jurisdiction to try him and that the ensuing conviction accordingly deprived him of his liberty without due process of law in violation of the Fourteenth Amendment. Shack's second theory is that by virtue of the failure of New Jersey to recognize the pre-transfer hearing requirement of the IAD, he is being held "in custody in violation of the ... laws ... of the United States." 28 U.S.C. § 2254(a) (1982).

In Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1951), the petitioner challenged his conviction by a Michigan court on the ground that he had been "forcibly seized, handcuffed, blackjacked" and taken by Michigan officers from Illinois to Michigan for trial in violation of the Federal Kidnapping Act. The Supreme Court denied habeas corpus relief holding that the petitioner's conviction did not violate the due process clause. Justice Black, writing for the Court, explained:

This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S. Ct. 225, 229, 30 L. Ed. 421, 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 apprised 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, 72 S. Ct. at 511.

It follows, a fortiori, that the existence of a procedural defect in Shack's extradition proceedings did not impair Pennsylvania's power to try him and that his confinement does not violate due process. United States ex rel. Huntt v. Russell, 285 F. Supp. 765, 767 (E.D. Pa. 1968) ("if 'forcible abduction' for trial is no violation of due process, lack of counsel on extradition certainly is not"), aff'd, 406 F.2d 744 (3d Cir. 1969) (per curiam).

In Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1980), the Supreme Court held both that the IAD is federal law and that Article IV(d) of the IAD incorporates the pre-transfer hearing requirement of Section 10 of the Uniform Criminal Extradition Act. Thus, in one sense at least, Shack's Pennsylvania conviction rests on a violation of a federal law. Not all violations of federal law justify habeas corpus relief, however. As the Supreme Court has noted:

[T]he appropriate inquiry [is] whether the claimed error of law [is] "a fundamental defect which inherently results in a complete miscarriage of justice," and whether " [i]t ... present [s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent."

Davis v. U.S., 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109 (1973) (quoting Hill v. U.S., 368 U.S. 424, 429, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)).

As the Frisbie case indicates, when one present in a court is convicted of a crime after notice and a fair trial, defects in the pretrial proceedings are not ordinarily considered sufficiently "fundamental" to justify collateral attack. Thus, for example, an illegal arrest provides no basis for a collateral attack on a judgment obtained after notice and a fair trial. U.S. v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 1251, 63 L. Ed. 2d 537 (1980); Green v. Yeager, 332 F.2d 794 (3d Cir. 1964) (per curiam), aff'g 223 F. Supp. 544 (D.N.J. 1963). Similarly, a procedurally defective extradition proceeding is normally an inadequate basis for collateral relief. Russell, 406 F.2d 774, aff'g 285 F. Supp. 765. See also Weddell v. Meierhenry, 636 F.2d 211, 214-215 (8th Cir. 1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); Houston v. Lane, 636 F.2d 1217 (6th Cir. 1980), aff'g without opinion 501 F. Supp. 5, 6 (E.D. Tenn. 1978), cert. denied, 450 U.S. 1003, 101 S. Ct. 1714, 68 L. Ed. 2d 207 (1981); Barton v. Malley, 626 F.2d 151, 160 (10th Cir. 1980).

Shack argues that his case is distinguishable from other defective extradition cases because this court and others have accorded special status to rights secured by the IAD. He relies on U.S. v. Williams, 615 F.2d 585 (3d Cir. 1980); U.S. v. Esola, 520 F.2d 830 (3d Cir. 1975); and Cavallaro v. Wyrick, 701 F.2d 1273 (8th Cir.), cert. denied, 462 U.S. 1135, 103 S. Ct. 3120, 77 L. Ed. 2d 1372 (1983). His analysis of this case law paints with too broad a brush, however.

In Williams and Esola, we held that a violation of IAD Article IV(e) can serve as a basis for habeas corpus relief. IAD Article IV(e), N.J.Stat.Ann. Sec. 2A:159A-4(e) (West 1971), provides for automatic dismissal with prejudice of "any indictment, information or complaint" leading to the transfer of a prisoner who is not tried prior to his return to the "original place of imprisonment." We held in Williams that Congress, by providing in Article IV(e) for an absolute defense to a criminal prosecution, had identified transfer and return without trial as a fundamental defect requiring remedy by habeas corpus. Williams, 615 F.2d at 590. Esola was based on the same premise.

At issue in this appeal is not IAD Article IV(e) but IAD Article IV(d) and Section 10 of the Uniform Criminal Extradition Act, N.J.Stat.Ann. Sec. 2A:160-18 (West 1971), neither of which provides that a violation of its requirements occasions an automatic dismissal of the charge with prejudice. The critical premise underlying the Williams and Esola decisions is therefore absent. Congress has not legislatively rendered the failure to provide a pre-transfer hearing a fundamental defect.

In addition to Williams and Esola, appellant relies on Cavallaro, 701 F.2d 1273, a decision of the Eighth Circuit Court of Appeals. Appellant points out that the Cavallaro Court characterized the failure to provide a pre-transfer hearing as a fundamental defect. Cavallaro, 701 F.2d at 1275. However, the court did not do so in the context of a collateral attack on a judgment, the context of this appeal. Cavallaro sought habeas corpus relief in the sending state in order to prevent his transfer without a hearing. The court ordered that he not be transferred to the receiving state without a pre-transfer hearing. There is a great deal of difference, however, between directing compliance with the pre-transfer hearing requirement of the IAD before there has been transfer and overturning a criminal conviction obtained after fair notice and a fair trial.

Congress has made no statement with respect to pre-transfer hearings comparable to its statement concerning returns to the sending state without trial. Perhaps this silence is attributable to an unwillingness on its part to flog one state for the failings of another. It may also reflect the fact that a primary purpose of a pre-transfer hearing is to assure that the prisoner transferred is the prisoner sought and trial in the receiving state reliably determines whether such is the fact. Appellant acknowledges the absence of a congressional declaration; he argues that a pre-transfer hearing is nevertheless important and that permitting collateral attack on the judgment of the receiving state would exert at least some indirect pressure on officials in the sending state to be more responsible in the future. We agree with Shack that the right to pre-transfer hearing is an important one. We note, however, that denial of that right by a state official is a violation of Section 1983 of the Civil Rights Act. Cuyler, 449 U.S. at 450, 101 S. Ct. at 712. One to whom a pre-transfer hearing is denied, accordingly, has a federally enforceable claim to damages and to injunctive relief.^*  There are thus sanctions for violations of Article IV(d) of the IAD. We decline to add the extraordinary sanction of permitting a collateral attack on an otherwise valid criminal conviction in the absence of some indication from Congress that it intended such a result.

The judgment of the district court will be affirmed.