APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 74-948).
Forman, Van Dusen and Garth, Circuit Judges. Garth, Circuit Judge, concurring.
VAN DUSEN, Circuit Judge.
This appeal challenges the district court order filed August 5, 1974, which dismissed plaintiff's habeas corpus petition. We disagree with the lower court's holding that no cause of action is presented by this claim arising under the Interstate Agreement on Detainers*fn1 and therefore vacate and remand for further proceedings.
On June 25, 1974, Frank Esola filed a petition for a writ of habeas corpus in the U.S. District Court for the District of New Jersey and alleged the following facts. On June 23, 1970, plaintiff was indicted by a Monmouth County, New Jersey, grand jury for possession of a stolen motor vehicle and possession of stolen property. On July 6, 1970, he was arraigned, entered a plea of not guilty, and was released on $5,000 bail. On March 15, 1971, petitioner received a four year sentence from the U.S. District Court for the District of New Jersey on an unrelated charge and began service of the federal sentence.
On April 21, 1971, Esola was transferred via a writ of habeas corpus ad prosequendum*fn2 from the Federal Correctional Institution at Danbury, Connecticut to Monmouth County, New Jersey, to stand trial. On April 27, 1971, he was returned to Danbury without having been tried. Thereafter, by unspecified procedures, Esola was returned to Monmouth County on June 10, 1971, September 25, 1971, and January 6, 1972 for trial. During the January transfer he was tried and convicted.*fn3
It was further alleged that petitioner, following his return to Danbury after his first transfer to New Jersey, requested the Danbury authorities not to allow any future transfers because of a violation of the Interstate Agreement on Detainers. The request was refused.
On November 15, 1971, appellant filed a pro se motion in the state trial court to dismiss the indictment based on a violation of Article IV (e) of the Interstate Agreement on Detainers (hereinafter Agreement). The motion was renewed during trial and denied in an order dated February 18, 1972. On July 6, 1973, the New Jersey Superior Court, Appellate Division, affirmed the conviction, specifically rejecting the claim relating to a violation of the Agreement. On November 27, 1973, the New Jersey Supreme Court denied certification. Neither the trial court nor the Appellate Division set forth reasons for denying petitioner's claim.
State remedies having been exhausted, the instant habeas corpus proceeding was initiated. Petitioner contended that he was entitled to have the state conviction voided because New Jersey violated Article IV (e) of the Agreement, N.J.S.A. 2A:159A-4(e),*fn4 when he was returned to Danbury without having been brought to trial. In answer to the petition the Monmouth County Prosecutor denied all of the factual allegations. The only state records which are part of the record before this Court are the documents which were attached to the habeas petition.
The district court held that state remedies had been exhausted as required by 28 U.S.C. § 2254(b) but dismissed the petition, citing United States ex rel. Huntt v. Russell, 285 F. Supp. 765 (E.D. Pa. 1968), aff'd. 406 F.2d 774 (3d Cir. 1969). Huntt involved a claim that an illegal extradition rendered a subsequent conviction void. Based on a long line of Supreme Court cases*fn5 rejecting this contention, relief was denied. Huntt does not control this case, however, because there was no assertion in that case that the rendition was violative of the Interstate Agreement on Detainers.
Although the opinion of the court below did not state the procedural basis upon which the petition was dismissed, the record is clear that the court treated the respondent's answer as a motion to dismiss for failure to state a claim upon which relief could be granted, Fed. R. Civ. P. 12(b) (6), United States ex rel. Gaugler v. Brierley, 477 F.2d 516, 523 (3d Cir. 1973), and granted the motion. This Court's function is to determine whether, assuming all of the facts alleged in the petition to be true, the petition states a claim upon which relief can be granted. 2A Moore's Federal Practice para. 12.08.*fn6
The Interstate Agreement on Detainers is a comprehensive statute which is designed to handle two major problems facing a prisoner against whom a detainer representing open criminal charges in another jurisdiction has been lodged. Article I of the Agreement*fn7 states that the party jurisdictions recognize that detainers and the difficulty in securing rapid disposition of them "produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." To implement the right to a speedy trial and to minimize the interference with a prisoner's treatment and rehabilitation, the Agreement creates several rights previously non-existent.
Article III of the Agreement*fn8 gives to a prisoner the right to demand disposition of any untried indictment, information or complaint which is the subject of a detainer lodged by a party state. If the trial is not commenced within 180 days of the request and a continuance is not granted in open court, for good cause shown, with the prisoner or his counsel present,*fn9 then the appropriate court in the jurisdiction in which the outstanding charge is pending shall enter an order dismissing the criminal charges with prejudice.*fn10 Thus, Article III is concerned with providing a mechanism, capable of being invoked by a prisoner, to insure the constitutional guarantee of a speedy trial.*fn11
Article IV, on the other hand, is designed both to provide a simplified procedure for allowing the demanding state to gain the presence of the defendant for trial, and to control what happens to the prisoner following rendition to the demanding jurisdiction. Article IV (a)*fn12 states that absent affirmative intervention by the governor of the confining jurisdiction,*fn13 and after a 30 day waiting period, a request for temporary custody by the prosecutor which is approved, recorded and transmitted by the court having jurisdiction over the pending charge shall be honored by the sending state. Article IV (c) requires that any trial made possible by the use of the Article IV(a) right shall be commenced within 120 days unless a continuance for good cause is granted in open court, the prisoner or his counsel being present. Finally, Article IV(e)*fn14 provides that if the trial is not held prior to the prisoner's return to the sending state, then the "indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." The purpose of the Article IV provisions is to insure that interruptions of the sending jurisdiction's incarceration are minimized, and in exchange for the small added hardship placed on the prosecutor of the demanding state regarding time limits, a simplified procedure for obtaining the defendant's presence is made available.
With this basic statutory framework in mind, we turn to the issues ...