Cross v. Cunningham

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-2272



                                   WAYNE F. CROSS,



                                Petitioner, Appellant,



                                          v.



                                 MICHAEL CUNNINGHAM,

                        WARDEN OF NEW HAMPSHIRE STATE PRISON,



                                Respondent, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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                                 ____________________



            John R.  Baraniak, Jr. with  whom Mark P.  Szpak, Jill J.  Chasson
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        and Ropes & Gray were on briefs for petitioner.
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            Patrick E. Donovan,  Assistant Attorney General, Criminal  Justice
            __________________

        Bureau, with  whom Jeffrey R.  Howard, Attorney General, was  on brief
                           __________________

        for respondent.


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                                    June 27, 1996

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BOUDIN,  Circuit  Judge.    Wayne  F.  Cross,  currently
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            serving a New Hampshire state sentence for two bank robberies



            in that state, appeals from  an order of the federal district



            court in New Hampshire dismissing  his petition for a writ of



            habeas corpus under 28 U.S.C.   2254.  In the petition, Cross



            sought to attack the New Hampshire state court convictions on



            the  ground   that  New  Hampshire  officials   violated  the



            Interstate Agreement  on Detainers,  N.H. Rev.  Stat. Ann.   



            606-A et seq.  ("IAD"), and  the Fourteenth  Amendment.   The
                  _______



            facts are as follows.  



                 While Cross was  in prison in Massachusetts  in November



            1983, New  Hampshire authorities  obtained jurisdiction  over



            Cross  pursuant  to the  IAD to  try  him for  two  1982 bank



            robberies.  Cross  had himself requested a  rapid disposition



            of  the charges  and waived  objections  to the  extradition.



            Thereafter, Cross was  convicted on the bank  robbery charges



            in  New Hampshire  state  court, and  in  February 1985,  was



            sentenced to  two consecutive terms of 7-1/2 to 15 years.  He



            then appealed from the convictions.  



                 At the same time, Cross asked New Hampshire officials to



            return him to Massachusetts pending resolution of his appeal,



            citing  an IAD  provision that  says the  prisoner should  be



            returned  to the sending state "[a]t the earliest practicable



            time consonant with  the purposes of  this agreement."   N.H.



            Rev.  Stat. Ann.    606-A:1, art. V(e).   Cross  said that he


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wanted to go back to  the Massachusetts prison to complete an



            electrician training program  that he had been  participating



            in before his rendition to New Hampshire.    



                 But New Hampshire officials were concerned that if Cross



            was  returned to Massachusetts  and his New  Hampshire appeal



            resulted in a  new trial, the anti-shuttling provision of the



            IAD might prevent his reprosecution.   N.H. Rev. Stat. Ann.  



            606-A:1, art. III(d).   Also, the officials were not  certain



            that Cross'  earlier waiver  of extradition  would cover  his



            return to New  Hampshire if a new trial became necessary.  As



            a  precaution,  they kept  him  in  New Hampshire  until  his



            convictions were affirmed on appeal in December 1986, some 22



            months after he was  sentenced.  State v. Cross, 519 A.2d 272
                                             _____    _____



            (N.H.   1986).     He   was   then   promptly   returned   to



            Massachusetts.1     After   completing   his    Massachusetts



            sentence in 1992, Cross was returned to  New Hampshire, where



            he is currently  serving out the bank robbery  sentences.  It



            was at this  point that Cross filed the  instant petition for



            habeas corpus in the federal district court in New Hampshire.


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                 1Following  his  conviction,  Cross filed  a  "motion to

            return" in  New Hampshire state court which  was dismissed as

            moot after  he was returned  to Massachusetts.  Prior  to the

            present action,  Cross also  brought proceedings  in the  New

            Hampshire state court collaterally attacking his bank robbery

            convictions  and also filed a habeas  petition in the federal

            district   court   in   Massachusetts;  both   efforts   were

            unsuccessful.  Only  the state appeal is reported.   Cross v.
                                                                 _____

            Warden, 644 A.2d 542 (N.H. 1994).
            ______


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Cross'  petition  alleged  that his  convictions  on  the New



            Hampshire bank  robbery charges must  be invalidated--without



            possibility of retrial--because the state violated the IAD by



            holding him in New Hampshire pending resolution of his appeal



            there.



                 In  addition to  the IAD  claim, the  petition  made two



            constitutional claims.  First, Cross argued that the delay in



            his return  to Massachusetts unconstitutionally  burdened his



            right to appeal,  in violation of the Due  Process Clause, by



            forcing him temporarily to forego rehabilitation if he wished



            to challenge  his convictions.   Second,  Cross claimed  that



            exacting this "extra  price" for pursuing an  appeal violated



            the  Equal Protection  Clause by  irrationally  treating some



            convicted defendants differently than others.



                 The district court dismissed  the petition, relying upon



            a  report and recommendation  by the  magistrate judge.   The



            magistrate   judge  had  ruled   that,  under  First  Circuit



            precedent, an IAD-violation claim was not ordinarily a ground



            for habeas  relief.  Fasano v.  Hall, 615 F.2d 555,  557 (1st
                                 ______     ____



            Cir. 1980).   As  for the  constitutional claims,  the report



            said that  these claims  were foreclosed as  an abuse  of the



            writ, under Sawyer  v. Whitley, 505 U.S.  333 (1992), because
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            they had not been raised  by Cross in his prior Massachusetts



            federal habeas petition.


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1.  Even  assuming arguendo that New  Hampshire violated
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            the  IAD--a  point  we need  not  decide--the  district court



            correctly ruled that  this statutory claim is  not cognizable



            under section 2254.   Although the IAD  is considered federal



            law for purposes of habeas corpus, Reed v. Farley, 114 S. Ct.
                                               ____    ______



            2291,  2296 (1994), nonconstitutional claims can be raised on



            habeas only  if  the alleged  error  results in  "a  complete



            miscarriage  of justice."   Id. at 2300  (citations omitted).
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            Cross cannot meet this substantial burden.  The IAD provision



            at issue here has nothing to  do with securing a fair  trial,



            and  Cross makes  no  claim that  the  alleged IAD  violation



            actually impaired  his ability  to  prepare a  defense or  to



            prosecute his appeal.  See Fasano, 615 F.2d at 557-58.
                                   ___ ______



                 Moreover,  we do not  agree with Cross'  suggestion that



            Reed  v. Farley undermines Fasano  v. Hall.   It is true that
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            Reed v. Farley leaves open  the possibility that, in  unusual
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            circumstances,   an    IAD    violation    or    any    other



            nonconstitutional violation of federal law might give rise to



            a claim  considered in a  habeas proceeding.   114 S.  Ct. at



            2296-99.  But Reed v.  Farley declined to consider such claim
                          ____     ______



            in  circumstances that  were  arguably  more compelling  than



            those presented here, and whatever  gap the Supreme Court has



            left open is too narrow for Cross.



                 Contrary  to  Cross'  suggestion,  denying review  under



            section 2254 does not insulate the prompt return provision of


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the IAD  from federal  enforcement or extend  to prisoners  a



            federal  right  without  a  remedy.   The  IAD,  approved  by



            Congress  as an interstate compact, comprises federal law for



            purposes of  42 U.S.C.    1983.  E.g.,  Cuyler v. Adams,  449
                                             ____   ______    _____



            U.S. 433  (1981).  Cross  was free to seek  injunctive relief



            under  section  1983,  requiring New  Hampshire  officials to



            comply  with their  IAD obligations.   Id.  See  also Stow v.
                                                   ___  _________ ____



            Horan, 36 F.3d 1089 (1st Cir. 1994). 
            _____



                 2.  The  district court dismissed Cross'  constitutional



            claims as an abuse of the writ, believing that neither of the



            constitutional  claims had  been  presented in  Cross'  prior



            federal  habeas proceeding  in Massachusetts.   See generally
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            Sawyer,  505 U.S.  at 338;  Rule 9(b)  following 28  U.S.C.  
            ______



            2254.   On  this  appeal,  both sides  concede  that the  due



            process   claim  was  raised  in  the  prior  federal  habeas



            proceeding and  so is not  foreclosed as  a "new" claim.   It



            appears that the equal protection claim was not raised in the



            Massachusetts habeas proceeding.



                 Cross  now offers several  arguments (e.g., that  he was
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            previously proceeding pro se,  that the Massachusetts  habeas
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            court held  no evidentiary  hearing) as to  why he  should be



            allowed to renew the due  process claim in this second habeas



            proceeding  and to make the equal  protection claim here even



            though not previously made in  the earlier petition.  We need



            not  decide these issues  because we  are satisfied  that the


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delayed return, whatever its propriety under the IAD, did not



            violate the Constitution.2



                 There is no indication that the delayed return comprised



            an attempt to punish Cross for appealing or to interfere with



            Cross'  appeal from  his  New  Hampshire  convictions.    Cf.
                                                                      ___



            Blackledge v.  Perry, 417 U.S.  21 (1974).  On  the contrary,
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            the aim was  to secure Cross' availability for  a retrial, if



            his appeal  caused one to be  necessary.  Whether or  not the



            New Hampshire authorities were overly cautious, their purpose



            was certainly a legitimate one.



                 The  delay may well have interfered with Cross' training



            program and  that is regrettable.  But  the Constitution does



            not  protect  against  every incidental  burden  that  may by



            happenstance result from  the decision to appeal.   Beauchamp
                                                                _________



            v.  Murphy, 37 F.3d 700 (1st Cir. 1994).  The likelihood that
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            a delayed return from one prison to  another would discourage



            meritorious  appeals  is  very slight  in  the  generality of



            cases;  more serious burdens were sustained in North Carolina
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            v. Pearce,  395 U.S. 711 (1969),  and in Beauchamp.   And, in
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            this case, Cross did pursue his appeal.
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                 2It is far from clear that  an unconstitutional delay in

            returning  Cross to Massachusetts would permit a habeas court

            to  invalidate  an otherwise  valid conviction  that occurred

            prior to the delay.  Ordinarily, in habeas there must be some

            causal  connection between the legal error and the challenged
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            detention.



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The equal protection claim made in Cross' brief is the



            same undue burden  claim just discussed--recast by   pointing



            to other  defendants who do  not suffer the same  burden when



            they  choose   to  appeal  (e.g.,   convicted  New  Hampshire
                                        ____



            defendants who  were not  extradited) and  claiming that  the



            discrepant  burden on Cross was irrational.  Certainly, Cross



            was   treated   differently,   but  that   is   because   his



            circumstances were different:   the rationale for a delay  in



            returning him to  Massachusetts does not  apply to those  who



            had not been extradited or had been but did not appeal. 



                 Cross' real argument, mislabeled as an equal  protection



            claim, is simply  that Cross himself did not  need to be kept



            in  New  Hampshire  because  that  state  could  easily  have



            reclaimed  him for a  new trial had that  been required.  New



            Hampshire authorities may  have been mistaken in  reading the



            anti-shuttling clause too broadly or  too narrowly construing



            Cross'  earlier waiver.    But such  a fumble  is at  worst a



            garden variety  administrative error in  application and  not



            invidious classification  under the Equal  Protection Clause.



            See J. Nowak & R. Rotunda, Constitutional Law   14.2,  at 570
            ___                        __________________



            (4th ed. 1991).



                 Affirmed. 
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