On Appeal from the United States District Court for the Eastern District of Pennsylvania, Civil No. 84-2361.
Before: GIBBONS, SLOVITER, and STAPLETON, Circuit Judges:
STAPLETON, Circuit Judge:
This is an appeal from a final judgment of the United States District Court for the Eastern District of Pennsylvania denying appellant habeas corpus relief. We affirm.
On May 11, 1979, appellant Murray Shack, having been convicted of a New Jersey criminal offense, was sentenced to a term of imprisonment. Pennsylvania authorities then lodge a detainer against Shack on the basis of an arrest warrant issued for a Pennsylvania offense. On September 14, 1979, Shack was transferred from New Jersey to stand trial in Pennsylvania. Prior to this transfer, no hearing was conducted as required by New Jersey's Uniform Criminal Extradition Act, N.J.Stat.Ann. §§ 2A:160-18 (West 1971), and the Interstate Agreement on Detainers ("IAD"), N.J.Stat.Ann. § 2A:159A-4 (West 1971), which has been held to incorporate the hearing requirement of the Extradition Act. Cuyler v. Adams, 449 U.S. 433, 448, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1980).
After transfer to Pennsylvania and prior to trial, Shack sought habeas corpus relief in the Court of Common Pleas and, subsequently, in the federal district court. Relief was denied by the state court on the ground that he had waived his right to a pre-transfer hearing and by the federal court on the ground that he had failed to exhaust his state remedies. The district court certified that there was no probable cause for appeal and this court denied a motion to issue a certificate of probable cause for appeal.
On November 20, 1979, Shack was found guilty of the Pennsylvania offense and was sentenced by a Pennsylvania court to a term of imprisonment which he is currently serving. Following sentencing in Pennsylvania and exhaustion of his state remedies, Shack again unsuccessfully sought federal habeas corpus relief.
Shack advances two theories, both of which are predicated on the failure of New Jersey to provide him a pre-transfer hearing during the extradition proceedings. The first is that this defect in those proceedings deprived Pennsylvania of jurisdiction to try him and that the ensuing conviction accordingly deprived him of his liberty without due process of law in violation of the Fourteenth Amendment. Shack's second theory is that by virtue of the failure of New Jersey to recognize the pre-transfer hearing requirement of the IAD, he is being held "in custody in violation of the...laws...of the United States." 28 U.S.C. § 2254(a)(1982).
In Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1951), the petitioner challenged his conviction by a Michigan court on the ground that he had been "forcibly seized, handcuffed, blackjacked" and taken by Michigan officers from Illinois to Michigan for trial in violation of the Federal Kidnapping Act. The Supreme Court denied habeas corpus relief holding that the petitioner's conviction did not violate the due process clause. Justice Black, writing for the Court, explained:
This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 30 L. Ed. 421, 7 S. Ct. 225, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is ...