Robert Gilbert May, Plaintiff-appellant, v. State of Georgia et al., Defendants-appellees, 409 F.2d 203 (5th Cir. 1969)

Pursuant to Rule 18 of the Rules of the Court, this case, a pro se appeal from the denial of mandamus in the district court, has been placed on the summary calendar for disposition without oral argument.¹  Because of the decision by the Supreme Court of Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969) the opinion of this court, rendered January 23, 1969, is withdrawn and this opinion substituted therefor.

Appellant is serving a twenty year sentence in the Florida penitentiary.²  He was indicted by the state of Georgia on February 26, 1965 on three counts of robbery. He contends that his right to a speedy trial as guaranteed by the Sixth Amendment has been violated by Georgia's failure to prosecute him and its placing a detainer on him for the purpose of securing custody of him and trying him at the conclusion of his Florida sentence. Although he characterizes this case as a "Petition for writ of Prohibition,"³  he invokes the habeas corpus statutes, 28 U.S.C.A. §§ 2241, 2242, 2254 as authority for the action, and we treat the action as an application for habeas corpus.

The district court denied relief July 22, 1968 on the ground that "the United States has no authority and no power to compel a state to prosecute, nor can a United States court compel a state to invoke comity for the surrender of a party to its custody for the purpose of a trial on a state charge." In Smith v. Hooey, supra, the Supreme Court held that a state, when confronted with a demand for trial by a person incarcerated by another sovereign, has "a constitutional duty to make a diligent, good-faith effort to bring him before the [proper state] court for trial." 393 U.S. at 383, 89 S. Ct. at 579, 21 L. Ed. 2d at 614. In deciding that this duty exists, the Supreme Court specifically rejected the power concept relied on by the district court in this case.

Hooey controls our decision.⁴  There is a duty on the State of Georgia to make "a diligent, good-faith effort" to bring appellant before the appropriate state court for trial, provided he has made a sufficient demand within the meaning of Hooey for a trial. Appellant apparently wrote various Georgia officials concerning different aspects of his case, but no copies of these inquiries are in the record. On this incomplete record, we cannot determine whether sufficient demand as contemplated in Hooey has been made.

The judgment of the district court is therefore vacated and the case is remanded for a determination of whether appellant made a sufficient demand on Georgia for a trial. Cappetta v. Wainwright, 5 Cir., 406 F.2d 1238 [Feb. 3, 1969]; see also Triplett v. Floyd Circuit Court, 393 U.S. 533, 89 S. Ct. 880, 21 L. Ed. 2d 756 (U.S. Feb. 24, 1969); Meeks v. Flourney, 393 U.S. 531, 89 S. Ct. 881, 21 L. Ed. 2d 756 (U.S. Feb. 24, 1969); Duncan v. Indiana, 393 U.S. 533, 89 S. Ct. 881, 21 L. Ed. 2d 757 (U.S. Feb. 24, 1969); McCrory v. Mississippi, 393 U.S. 532, 89 S. Ct. 881, 21 L. Ed. 2d 757 (U.S. Feb. 24, 1969). If the district court determines that sufficient demand was made, then the writ should be granted subject to the right of Georgia to attempt to obtain appellant for trial on the outstanding robbery indictment within a reasonable time.⁵  If the court concludes that no demand was made, appellant's application should be dismissed, without prejudice to appellant to make the appropriate demand on State officials.

Nothing said herein precludes appellant from attempting to show at a state trial on these charges that he has been prejudiced by the state's delay. But we do not in any way suggest how such issue, if raised, should be resolved, leaving that to the state trial judge for determination.

Remanded to the district court for further proceedings consistent with this opinion.