In Re Moskaluk

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                           Nos. 91-070 & 91-071


In re Michael Moskaluk                       Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court

                                             March Term, 1991


Frank G. Mahady, J.

E.M. Allen, Defender General, and Henry Hinton, Appellate Attorney,
  Montpelier, and Michael Moskaluk, pro se, Burlington, for petitioner-
  appellant

Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
  Attorney General, Montpelier, for respondent-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Petitioner, Michael Moskaluk, who is held under two
extradition warrants, brought a habeas corpus action in Chittenden Superior
Court and was denied relief.  We affirm that denial.
     On August 2, 1990, petitioner was arrested in Vermont and held as a
fugitive from justice from the state of Louisiana.  On September 6, 1990, he
was served with a governor's extradition warrant.  He challenged that by
petition for habeas corpus on October 2, 1990 and prevailed when the
superior court found that the documents failed to show that he was present
in Louisiana when the offense was committed.  The Governor of Louisiana
supplied additional documents and again requested extradition.  Petitioner
was again arrested on a Governor's warrant, and this time was unsuccessful
in obtaining release below.
     On November 2, 1990, before the court acted on the Louisiana request, a
detainer arrived from the state of Texas.  That was followed by a request
for extradition from the Governor of Texas, and on November 16, 1990, the
Governor of Vermont issued a warrant on this request.  Petitioner attacked
this warrant in the Chittenden Superior Court.  The action was joined with
the attack on the second Louisiana warrant and was similarly unsuccessful.
     Petitioner, appearing through counsel and pro se, raises a number of
challenges to the superior court's denial of relief.  We first consider
those claims that are raised with respect to the Louisiana warrant or with
respect to both warrants; followed by consideration of claims applicable
only to the Texas warrant.
                                    I.
     The Louisiana documents contain a demand for extradition bearing a
machine-stamped signature of the Governor and Secretary of State.  The
demand was based on a request made by the First Assistant District Attorney
of Orleans Parish, showing petitioner is charged with illegal possession of
stolen property worth over $500.  The request is supported by an affidavit
of a police officer, made before a judge, detailing the facts supporting the
charge.  The affidavit alleges that petitioner, while in Louisiana, sold
about $500,000 worth of Audubon prints knowing that they had been stolen
from the Louisiana State Museum.  The request is also supported by an
information and an arrest warrant.
     Petitioner challenged the Louisiana extradition on four grounds in the
trial court:  (1) because the court had granted habeas corpus based on the
papers submitted with the original demand, the second demand was barred by
res judicata; (2) the signatures of the Governor and Secretary of State of
Louisiana are deficient because they were made by machine; (3) if
petitioner's confession is excluded, there is insufficient showing that
petitioner committed the offense; and (4) there is no showing of
identification.  On appeal, he reasserts these grounds and adds that his
defeat below was caused by ineffective assistance of counsel and the
interference of Vermont prison officials.
     The first Louisiana demand was found defective because it did not show
that petitioner committed the alleged offense in Louisiana and left that
state.  See In re Ropp, 149 Vt. 269, 271, 541 A.2d 86, 88 (1988).  The
affidavit supporting the second demand clearly corrects that deficiency.
Petitioner argues that it does so based on facts well-known when the first
demand was made and, therefore, the second demand is barred by res
judicata.  Whatever the facts surrounding the resubmission of the Louisiana
demand, res judicata does not apply in extradition proceedings.  See Collins
v. Loisel, 262 U.S. 426, 430 (1923); People v. Coyle, 654 P.2d 815, 818
(Colo. 1982); cf. 13 V.S.A. { 4968 ("proceedings . . . which . . . fail to
result in, extradition [shall not] be deemed a waiver by this state of any
of its rights"); In re Roessel, 136 Vt. 324, 329, 388 A.2d 835, 838-39
(1978) (under { 4968 and the identical statute in demanding state, act of
demanding state in sending defendant to Vermont could not be construed as
waiver of right to extradition).
     The second argument focuses on the statute, which requires a demand for
extradition, and the presentment of certain supporting documents, by the
"executive authority" of the state seeking the person in question. 13 V.S.A.
{{ 4943-4946.  The executive authority is defined to include the Governor
and any person performing the function of Governor.  13 V.S.A. { 4941.
Nowhere does the statute require the signature of the Governor.
     The warrant of the Governor of Vermont establishes a prima facie case
"that the rendition papers were issued on proper authority."  Russell v.
Smith, 127 Vt. 225, 228, 245 A.2d 563, 565 (1968).  Petitioner cannot defeat
this case by showing merely that a signature machine was used in Louisiana.
See Ex parte Britton, 382 S.W.2d 264, 266 (Tex. Cr. App. 1964) (method to
affix signature of Governor does not affect validity of demand).  Rather, he
must prove that the demand was not made at the direction of the Governor of
Louisiana.  See Hudson v. State, 388 So. 2d 577, 579 (Fla. App. 1980)
(signature of agent of Governor sufficient); Woodard v. Rasmussen, 73 Or.
App. 689, 692-93, 700 P.2d 675, 677 (1985) (signature of member of
Governor's legal staff sufficient).  He has not done so.
     In his third argument, petitioner requests that we consider the
sufficiency of the Louisiana affidavit after omitting information obtained
as a result of an illegal confession.  We have held that our function in
reviewing the legality of extradition pursuant to a Governor's warrant is
essentially to determine the correctness of the requisition papers and the
identity of the person arrested.  In re Everett, 139 Vt. 317, 319, 427 A.2d 349, 350 (1981).  We cannot go behind the Louisiana affidavit to determine
whether the information contained therein was lawfully obtained.  This issue
can and must be litigated in Louisiana.  When we consider all of the
information in the Louisiana affidavit, it is clearly sufficient to meet the
statutory requirements.
     Petitioner's final claim in the trial court attacks the sufficiency of
the Louisiana identification.  There is no question that the information
provided was sufficient for a prima facie showing of identity.  See In re
Haynes,     Vt.    ,    , 583 A.2d 88, 90 (1990).  Petitioner failed to
overcome this prima facie case.  There is no error in the finding that
petitioner is the person sought in Louisiana.
     Petitioner raises two additional arguments pro se in this Court.
First, he attacks his representation below as constitutionally ineffective.
In support of this argument, he attaches numerous documents to his pro se
brief to show that through discovery and investigation he could have
undermined the Louisiana affidavit.  The state counters that because of the
summary nature of extradition, none of the alleged omissions would have
mattered.
     We have no record from which to judge petitioner's claims.  For this
reason, we cannot consider an ineffective assistance of counsel claim on
direct appeal from the proceeding where the assistance was allegedly
ineffective.  State v. Davignon, 152 Vt. 209, 222, 565 A.2d 1301, 1308
(1989); State v. Gabaree, 149 Vt. 229, 232-33, 542 A.2d 272, 274 (1988).
     There are similar difficulties with petitioner's second pro se
argument.  Here, petitioner complains that prison officials denied him
access to counsel and denied him the opportunity to obtain Louisiana counsel
to challenge the Louisiana proceedings from Vermont.  Again, we lack a
record for review and cannot resolve this claim on direct appeal.
                                    II.
     The Texas papers, signed by the Governor and Secretary of State, demand
extradition because petitioner was convicted of theft and thereafter
violated the terms of probation.  They are based on a request by the
District Attorney of Dallas County, made under oath, stating that petitioner
"failed to abide by the terms of probation."  The information and judgment
show that in 1985 petitioner was convicted of theft of property worth
between $750 and $20,000 and was sentenced to six-years' probation.  On
September 21, 1990, an assistant district attorney sought revocation of
petitioner's probation on three grounds:  (1) petitioner committed a crime
in Louisiana -- the theft of Audubon prints; (2) petitioner failed to
report to his probation officer for the months of June, July and August,
1990; and (3) petitioner is outside Dallas County, Texas without permission.
An arrest warrant was issued by a district judge on this charge.
     Petitioner first claims that there is no finding of probable cause that
petitioner violated his probation in Texas.  His claim is based in large
part on 13 V.S.A. { 4943(b), which requires the documents presented by the
state seeking extradition to "show" that the person who is sought has been
convicted in that state and has "broken the terms of his . . . probation."
Petitioner argues that this language requires at least a showing of probable
cause to believe that he has violated his probation.
     We held in In re Hval, 149 Vt. 58, 60, 539 A.2d 537, 538 (1987), that
in probation violation cases the crime for which extradition is sought is
the underlying crime and not the probation violation.  The judgment of
conviction establishes the factual basis for that crime.  Thus, when the
petitioner in Hval argued that the paperwork failed to establish probable
cause that petitioner violated his probation, we held such a showing was
unnecessary.  Id. at 61, 539 A.2d  at 539.
     We think that petitioner reads too much into the word "show" in {
4943(b).  As the State points out, the Legislature has demonstrated in {
4955 that it knows how to require a probable cause showing when it wants to.
We note that the parallel statement of the requirement in { 4943(a) is
satisfied by a statement of the executive authority that the person sought
has broken the terms of his probation.
     Subsection (b) of { 4943 is part of the 1926 version of the Uniform
Criminal Extradition Act, adopted in Vermont in 1933.  See No. 36, { 5 (1933
Vt. Adj. Sess.).  Most states have updated their version of the Uniform Act
in line with the 1936 amendment and dropped their equivalent of subsection
(b).  See generally Lovejoy v. State, 148 Vt. 239, 244-45, 531 A.2d 921, 925
(1987) (discussing 1936 amendment to the Uniform Criminal Extradition Act).
Seven states -- Alabama, Arizona, Arkansas, Idaho, Indiana, Vermont, and
Wyoming -- have retained this language.  The issue presented here has been
resolved directly or impliedly in Alabama, Arizona, and Idaho.  In each, the
courts have allowed extradition without a finding of probable cause in
parole or probation revocation situations.  See Morris v. State, 199 So. 2d 675, 677 (Ala. App. 1967) (documents sufficient in parole revocation case
without judicial finding that parole had been violated); Application of
Kirk, 6 Ariz. App. 238, 239, 431 P.2d 678, 679 (1967) (allegation of parole
violation sufficient; whether "person has in fact violated his parole is of
no concern to the courts of the asylum state"); Richardson v. State, 90
Idaho 566, 569-70, 414 P.2d 871, 872-73 (1966) (bench warrant from
requesting state sufficient to show parole violation).
     On a related point, petitioner argues that the Texas judgment is
undated so it is impossible to determine whether he is still under
probation.  On review of the record, we conclude that the judgment is dated
September 10, 1985.  It is clear that petitioner's six-year probation is
still in effect.
     Petitioner's final claim below was that extradition is not
constitutionally authorized where the individual is not charged with a
crime.  As discussed above, petitioner is charged with a crime -- the
underlying offense for which probation was imposed.  See In re Hval, 148 Vt.
544, 546, 537 A.2d 135, 137 (1987).
     In his appearance pro se in this Court, petitioner argued that the
Texas and Louisiana demands are linked and the dismissal of the first
Louisiana proceeding eliminated any probable cause for the Texas demand.
The dismissal of the Louisiana proceeding was based only on a failure to
show that petitioner was present in the state when he allegedly committed
the crime.  It was not based on a failure of Louisiana to make a sufficient
showing that petitioner had committed the crime.  Even if the two demands
are linked, as petitioner argues, there is no reason to refuse to honor the
Texas demand because of the action on the Louisiana demand.
     All other arguments made here or in the trial court to attack the Texas
warrant have been considered above with respect to the Louisiana warrant.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice