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November 7, 1980

Collins JOHNSON, Petitioner,
Ralph WILLIAMS, Warden and William F. Hyland, Attorney General of New Jersey, Respondents

The opinion of the court was delivered by: BIUNNO

Johnson has filed a petition under 28 U.S.C. ยง 2254, challenging a New Jersey sentence imposed March 26, 1976, to be served consecutively to a Maryland sentence then being served, which had been imposed June 1, 1963. He claims a violation of the Interstate Agreement on Detainers, to which both Maryland and New Jersey are party, see 18 U.S.C.App., and NJS 2A:159A-1, et seq. As a consequence, he seeks to have the sentence and conviction set aside and the indictment on which they were based dismissed with prejudice.

Johnson had been serving a 40 year Maryland sentence, imposed June 1, 1963, when he escaped on November 25, 1971 and became a fugitive. He evidently came to New Jersey, because he was arrested here on charges of crimes committed here after his escape. Three indictments resulted, Mercer County (N.J.) Nos. 1020-72, 1026-72 and 1027-72. These indictments were returned March 20, 1973.

 On December 22, 1975, Johnson was sent notice under the Agreement that a detainer had been filed by Maryland on an open escape warrant, and outlining the steps he could take. At the bottom of the form is a line reading: "I DO/DO NOT DESIRE TO FILE FOR A SPEEDY TRIAL." The phrase "DO NOT" was crossed out, and below it is a handwritten note reading, "Man refused to sign because he has a letter stating they didn't wish to prosecute him."

 This note refers to the letter, dated June 27, 1974, in which Mr. Canter, an Assistant State's Attorney in Maryland wrote the Warden of Rahway State Prison, stating that "we do not wish to prosecute Mr. Johnson on our escape charge of 11/25/71."

 There must have been some communication between Maryland and New Jersey officials, from which Maryland learned that while convicted and serving a sentence on No. 1020-72, trials remained to be held for the other two indictments. Maryland then wrote New Jersey to report that no trial was intended for the escape charge.

 The letter went on to say that Johnson could be kept in New Jersey custody until all legal proceedings had been completed. Nothing suggests that Maryland ever requested temporary custody in order to bring Johnson to trial on the untried escape charge; although it did wish him returned to serve the remainder of his sentence.

 After what are referred to as prolonged pretrial matters, the trial judge in Mercer County set successive peremptory trial dates for the remaining indictments, No. 1026-72 and 1027-72. Trial on No. 1026-72 began October 18, 1975, and on November 18, 1975, the jury returned a verdict of guilty.

 On December 18, 1975, before sentence on No. 1026-72 had been imposed, the N.J. Parole Commission released Johnson on parole from his sentence in No. 1020-72, and Johnson was delivered to Maryland to continue serving his interrupted 1963 sentence.

 The record discloses no explanation for this event. Although bail had been set for No. 1026-72, and had not been posted, Johnson was released to Maryland. It does not appear whether the Parole Commission was aware of his fresh conviction, or that another indictment remained to be tried. Whatever the unexplained reason, the fact is that Johnson was released on parole after conviction and before sentence.

 It is observed, at this point, that New Jersey's custody throughout that period was a custody not within the scope of the Agreement. New Jersey had custody, not as the result of a detainer filed with Maryland, followed by a request for temporary custody to dispose of untried charges, but because Johnson, then a fugitive, had himself come to New Jersey and committed crimes, for two of which he had been convicted, had been sentenced and paroled on one, was to be sentenced on the other, and the third remained to be tried.

 After his arrival in Maryland, a formal indictment charging escape was filed on March 8, 1976. Arraignment was had March 18, 1976 and a plea of not guilty entered.

 After being sent to Maryland, a detainer for Johnson was filed there on February 16, 1976, and a request for temporary custody was made March 19, 1976. He was accordingly returned to New Jersey in temporary custody under the Agreement, was sentenced on No. 1026-72 on March 26, 1976, and returned to Maryland on March 30, 1976. A detainer was filed for the service of the consecutive sentence imposed in No. 1026-72.

 After his return to Maryland on March 30, 1976, the escape charge was called for trial on April 19, 1976. The Public Defender entered his appearance. The State then moved to nolle prosse the indictment, and the motion was granted. Johnson then remained in Maryland custody, subject to detainer for serving the sentence here in No. 1026-72. This process carried out in formal records of the court the representation in the June 12, 1974 letter, that Maryland ...

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