Devens v. Cunningham

• Court: District Court, D. New Hampshire
• Decided: June 26, 1996
• Docket: CV-96-016-B
• Status: Published

Opinion

Devens v . Cunningham CV-96-016-B 06/26/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James W . Devens

v. Civil N o . 96-016-B

Michael J. Cunningham, et a l .

O R D E R

Petitioner's sole argument is that the State of New

Hampshire violated his rights under the Interstate Agreement on

Detainers ("IAD") by failing to bring him to trial within 180

days after he "caused to be delivered" notice of his demand for

disposition of the New Hampshire charges to the appropriate New

Hampshire officials. N.H. Rev. Stat. Ann. § 606-A:1 (1986).

It is undisputed that petitioner delivered a demand for disposition of the New Hampshire charges to New Mexico prison

officials on or about April 1 8 , 1992, more than 180 days prior to

the commencement of his October 2 7 , 1992, trial in New Hampshire.

It is also undisputed that the New Mexico prison officials did

not deliver the demand to the appropriate New Hampshire officials

until May 2 2 , 1992, only 159 days before trial. Relying on the

date New Hampshire officials received the demand and the United States Supreme Court's recent opinion in Fex v . Michigan, 507

U.S. 4 3 , 51 (1993), which held that the IAD's 180-day time limit

does not begin to run until the prisoner's demand for trial is

received by the state where the charge is pending, the New

Hampshire Supreme Court determined that New Hampshire had not

violated petitioner's rights under the IAD.

Petitioner argues that the New Hampshire Supreme Court

violated his right to due process by relying on Fex, because it

post-dated his IAD claim.1 In support of his argument, he cites

an earlier decision of New Mexico's Court of Appeals which held

that, for prisoners tried in New Mexico, the IAD's 180-day

limitation period begins to run as soon as the prisoner delivers

his IAD demand to his custodian. State v . Tarango, 734 P.2d

1275, 1296 (N.M. A p p . ) , cert. denied, 734 P.2d 761 (N.M. 1987);

overruled on other grounds, Zurla v . State, 789 P.2d 5 8 8 , 593

(N.M. 1990).

1 To the extent that petitioner purports to rely on the Constitution's ex post facto clause, that reliance is misplaced. "The ex post facto clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch of government." Lustgarden v . Gunter, 966 F.2d 5 5 2 , 553 (10th Cir.) (quoting Marks v . United States, 430 U.S. 1 8 8 , 191 (1977)), cert. denied, 506 U.S. 1008 (1992), rehearing denied, 507 U.S. 955 (1993)).

2 Assuming without deciding that petitioner properly presented

his due process claim to the New Hampshire Supreme Court, I deny

the claim on its merits. The Tarango decision does not bind the

New Hampshire Supreme Court, and neither the New Hampshire

Supreme Court nor the United States Supreme Court have ever given

the IAD a similar interpretation. Further, although prior to Fex

other courts had followed the approach taken in Tarango, most

courts that considered the question determined that the 180-day

limitation period does not begin to run until the demand is

received by the state where the charge is pending. See Birdwell

v . Skeen, 983 F.2d 1332, 1337 n.13 (5th Cir. 1993) (collecting

cases). Therefore, the Court's interpretation of the IAD in Fex

was hardly unforeseeable. Accordingly, the New Hampshire Supreme

Court did not violate petitioner's due process rights by applying

Fex in his case. See Lustgarden, 966 F.2d at 553 (retroactive

use of a judicial interpretation of a statute violates due

process only if the interpretation is unforeseeable).

Defendant's motion for summary judgment (document n o . 24) is

granted.

SO ORDERED.

Paul Barbadoro United States District Judge June 2 5 , 1996

3 cc: James W . Devens, pro se Malinda Lawrence, Esq.