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March 7, 1983

RICHARD NASH, Petitioner,

The opinion of the court was delivered by: DEBEVOISE

 Petitioner Richard Nash seeks issuance of a habeas corpus writ pursuant to 28 U.S.C. § 2254. He is serving a five to ten year sentence in the State Correctional Institution at Dallas, Pennsylvania and attacks the legality of a detainer filed against him by the State of New Jersey.

 Petitioner Nash bases his argument upon the New Jersey Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 et seq. Under this Agreement, a prisoner may demand the speedy disposition of charges pending against him in another jurisdiction, and a member State may obtain for trial a prisoner incarcerated in another member State. See United States v. Mauro, 436 U.S. 340, 343, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978). Under Article III of the Agreement, if a trial is not commenced within 180 days of an inmate's proper request, then a court in the jurisdiction where the outstanding charge is pending shall enter an order dismissing the criminal charges with prejudice. Petitioner claims that the State of New Jersey failed to dispose of the detainer lodged against him within the required 180 days and therefore maintains that the state court should have dismissed both the detainer and its underlying charge and that this court should issue a writ of habeas corpus.

 In a June 24, 1981 opinion, I determined that petitioner had not exhausted his state remedies, and on August 3, 1981, I administratively terminated this action without prejudice to allow the petitioner to pursue his claim in the New Jersey courts.

 On August 24 and 25, 1981, a hearing was held before the Honorable Richard Barlow, Jr. in the Superior Court of New Jersey. The trial judge determined that the petitioner's correspondence from April to November 1979 (the details of which are set forth below) failed to satisfy the notice requirements of N.J.S.A. 2A:159A-3 necessary to trigger the 180 day period in which a state must commence a hearing on an untried complaint.

 The court concluded that the State of New Jersey was not untimely in addressing petitioner's alleged probation violation and held that the detainer against petitioner was valid. Judge Barlow found petitioner guilty of violating his probation on the basis of his Pennsylvania convictions and resentenced petitioner to serve two consecutive 18 month terms with credit for the 249 days petitioner served in 1976 and 1977.

 On June 22, 1982, the Appellate Division of the Superior Court of New Jersey affirmed the trial court's judgment, and on November 12, 1982, the Supreme Court of New Jersey denied both certification and petitioner's direct appeal.

 The habeas corpus petition is now before this court for a determination on the merits.

 Initially, I note that both Pennsylvania and New Jersey adopted the Interstate Agreement on Detainers, 42 Pa. C.S.A. §§ 9101, et seq.; N.J.S.A. 2A:159A-1, et seq., and that the Supreme Court in Cuyler v. Adams, 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981), held that the Agreement is a congressionally sanctioned interstate compact, the interpretation of which presents a question of federal law. Id. at 442. Additionally, the Third Circuit has found that an alleged violation of the Interstate Agreement on Detainers is an issue cognizable in federal habeas corpus proceedings. Johnson v. Williams, 666 F.2d 842, 844, n.1 (3d Cir. 1981); United States v. Williams, 615 F.2d 585, 590 (3d Cir. 1980).

 Before I can turn to the merits of petitioner's claim, I must address the state's argument that Article III of the Agreement, N.J.S.A. 2A:159A-3, is inapplicable to a charge of parole or probation violation. Neither the Third Circuit Court of Appeals, the district courts of this circuit, nor the New Jersey courts have ever addressed this issue.

 Article III states in relevant part:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State an untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days . . . .

 N.J.S.A. 2A:159A-3(a) (emphasis added).

 Although an alleged probation violation could be construed as an "untried complaint", the Interstate Agreement on Detainers does not so specify on its face.

 However, Article I, the section which sets forth the Agreement's purpose, employs broad language which seems to encompass a probation violation charge. This Article provides that:

charges outstanding against a prisoner, [as well as] detainers based on untried indictments, informations, or complaints . . . produce uncertainties which obstruct programs of prisoner treatment and rehabilitation . . . .

 (emphasis added). N.J.S.A. 2A:159A-1. The stated purpose of the Agreement is to dispose of outstanding charges, indictments, informations, or complaints expeditiously to protect the prisoner from the adverse consequences of detainers. N.J.S.A. 2A:159A-1; Cuyler v. Adams, 449 U.S. 433, 448-449, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981); United States v. Mauro, 436 U.S. 340, 360, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978). Article IX of the Interstate Agreement on Detainers directs that the Agreement should be liberally construed to effectuate these purposes. N.J.S.A. 2A:159A-9.

 It appears that the stated policy behind the Agreement would apply to petitioner's outstanding detainer. A detainer based on an alleged probation violation will, of course, have the same adverse effects on an inmate as a detainer based on an untried indictment or information. The punitive consequences of detainers are generally recognized to include the following:

the inmate is (1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i.e., honor farms or forestry camp work); (4) ineligible for trustee status; (5) not allowed to live in preferred living quarters such as dormitories; (6) ineligible for study-release programs or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred prison jobs which carry higher wages and entitle them to additional good time credits against their sentence; (9) inhibited by the denial of possibility of parole or any commutation of his sentence; (10) caused anxiety and thus hindered in the overall rehabilitation process since he cannot take maximum advantage of his institutional opportunities.

 Cooper v. Lockhart, 489 F.2d 308, 314 (8th Cir. 1973). In light of the above consequences, a prisoner with any kind of outstanding detainer will be anxious to resolve the underlying charges.

 The legislative history behind the Interstate Agreement on Detainers provides further support for the contention that a detainer based upon an alleged probation violation constitutes a detainer based upon an "untried indictment, information, or complaint" within the meaning of the statute.

 The Interstate Agreement on Detainers, codified in New Jersey at N.J.S.A. 2A:159A-1, et seq., is a compact among 48 states, the District of Columbia, and the United States. The Council of State Governments initially drafted the Agreement in 1956. The draft Agreement was reviewed and approved in April 1956 by a conference jointly sponsored by the American Correctional Association, the Council of State Governments, the National Probation and Parole Association, and the New York Joint Legislative Committee on Interstate Cooperation. Following this conference's endorsement of the Agreement, the Council of State Governments included the proposal in its suggested State Legislation Program for 1957.

 The New Jersey legislative enactment of the Interstate Agreement on Detainers in 1958 contained a text identical to the 1957 proposed legislation. A sponsor's statement is the only legislative history that exists for the New Jersey Agreement. This statement provides:

 Assembly Bill 64 (1958), sponsored by William E. Ozzard and Leonard D. Ronco. Although the legislative history recorded in New Jersey is sparse, a more comprehensive statement of legislative intent is found in the comments on the proposed legislation made by the Council of State Governments in 1956 and circulated to all the adopting States. The Supreme Court in both Cuyler v. Adams, 449 U.S. 433, 447, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981) and United States v. Mauro, 436 U.S. 340, 359, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978), examined the recommendations ...

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