Grizzell v. State of Tennessee

601 F. Supp. 230, 1984 U.S. Dist. LEXIS 24375

• Court: District Court, M.D. Tennessee
• Decided: August 14, 1984
• Docket: Civ. A. 3-84-0063
• Status: Published

Opinions

MEMORANDUM OPINION, ORDERS AND CERTIFICATE

NEESE, Senior District Judge,

Sitting by Designation and Assignment.

The petitioner Mr. Alfred E. Grizzell, who was apparently convicted of robbery and kidnapping on June 23, 1977 in the Criminal Court of Davidson County, Tennessee, seeks the federal writ of habeas corpus.¹ 28 U.S.C. § 2254. The basis therefor is his contention that the state of Tennessee violated the Interstate Agreement on Detainers (Agreement), Art. 111(a), by not commencing his trial within the mandatory 180 days.² That claim is not cognizable in this proceeding:

The rights created by such Agreement “ * * * are statutory, not fundamental, constitutional, or jurisdictional in nature. * * * ” Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir.1981). Nonconstitutional claims can be raised on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice. Stone v. Powell, 428 U.S. 465, 477, n. 10, 96 S.Ct. 3037, 3044, n. 10, 49 L.Ed.2d 1067 (1976), reh. den., 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).

This Court is satisfied that any violation of the Agreement by the state of Tennessee did not constitute such a fundamental defect in the state proceedings against Mr. Grizzell as to be cognizable in this federal habeas corpus proceeding. Mars v. United States, 615 F.2d 704, 707[1] (6th Cir.1980), cert. den., 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980), distinguishing Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. den., 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); see Kowalak v. United States, 645 F.2d 534, 536-537 (6th Cir.1981); cf. Bracey v. State of Tennessee, 616 F.2d 268 (6th Cir.1980). The petitioner makes no claim that any failure to commence his trial within 180 days in any way affected or impugned the integrity of the factfinding process at his trial or that it caused him any actual prejudice. He does not claim that his convictions were the product of, or were affected by, any violation of the Agreement. In fact, he avers in his petition that the Tennessee trial judge “Dismissed the Indictments”!

It appearing plainly on preliminary consideration, Rule 4, 28 U.S.C. fol. § 2254, from the face of the applicant’s petition that he is entitled to no relief in this Court now, it hereby is

ORDERED:

(1) that his petition is DISMISSED summarily, id.;

(2) that the clerk so notify the petitioner forthwith, id.; and,

(3) that copies of such petition be served with copies of this order forthwith by certified mail on the respondent-sheriff and the attorney general and reporter of the state of Tennessee, id.

Should the applicant give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in for-ma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R.App.P.

As the petitioner plainly has not stated a claim cognizable under 28 U.S.C. § 2254, such certificate will not issue. Id.

1 . Annexed to the applicant’s petition is his affidavit that he is unable to pay the costs of this proceeding or give security therefor and his statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). He hereby is AUTHORIZED, therefore, to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

2 . “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 any 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 one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint * * Art. 111(a), supra.

Both Florida and Tennessee are signatories to the Agreement. See West’s F.S.A. §§ 941.45— 941.50, inclusive: T.C.A. §§ 40-3901 — 40-3908, inclusive.