Bosworth

454 N.E.2d 1293, 16 Mass. App. Ct. 1003, 1983 Mass. App. LEXIS 1479

• Court: Massachusetts Appeals Court
• Decided: October 6, 1983
• Status: Published

Opinion

Upon the hearing of a petition for habeas corpus to question his confinement pursuant to a Governor’s warrant that looked to his rendition to Pennsylvania, the petitioner was limited by the judge of the Superior Court, over objection, to the conventional grounds of contest, such as identity, fugitive status, etc., that have been held available in Maldonado, petitioner, 364 Mass. 359, 362 (1973), Brown, petitioner, 370 Mass. 267, 270 (1976), and Upton, petitioner, 387 Mass. 359, 361 (1982). So limited, the petitioner failed of relief. The nub of the claim that the petitioner desired to press was that, in violation of an alleged constitutional right, the Commonwealth failed to afford him counsel for a period of some five months after Pennsylvania lodged its “detainer” (Interstate Agreement on Detainers, St. 1965, c. 892, § 1, et seq.) in the Barnstable house of correction, where he was being held under sentence for crime. We need not enter upon a discussion whether that claim should have been heard on habeas corpus despite the cited cases, or was rather to be asserted, if it could be asserted at all, in an anterior proceeding in this Commonwealth, or in a proceeding in Pennsylvania after delivery of the petitioner there. In fact, as was made to appear at the argument of this appeal, the petitioner evidently was represented by counsel after the period mentioned and while there was still time for him to make and pursue a reasoned choice among the courses open to a person who is the object of a detainer.¹ Thus, even if it be assumed that the claim to counsel of one in that predicament is of constitutional rank (but see Meachum v. Fano, 427 U.S. 215, 225 [1976]; Moody v. Daggett, 429 U.S. 78, 87 [1976]; Olim v. Wakinekona, 461 U.S. 238, 244-245 [1983]; Commonwealth v. Glavin, 354 Mass. 69, 73 [1968]; Applications of Oppenheimer, 95 Ariz. 292, 299 [1964]; Wertheimer v. State, 294 Minn. 293, 298 [1972]), the present petitioner can show no material prejudice. See United States v. Morrison, 449 U.S. 361, 366 (1983); Commonwealth v. Cinelli, 389 Mass. 197, 209-210 (1983). Accordingly, the denial of the petition for a writ of habeas corpus is

Daniel E. Callahan for the petitioner. Martin E. Levin, Assistant Attorney General, for the respondent.

Affirmed.

1 The person may act under art. Ill of the Agreement, thereby yielding to a return to the demanding State for prompt trial, or await and if feasible resist involuntary proceedings, meanwhile undertaking any possible negotiations. There is no suggestion that the petitioner chose at any time to expedite criminal proceedings in Pennsylvania by acting under art. III.