Tomas L. Kowalak v. United States

645 F.2d 534, 1981 U.S. App. LEXIS 14753
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 31, 1981
Docket79-5177
StatusPublished
Cited by39 cases

This text of 645 F.2d 534 (Tomas L. Kowalak v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tomas L. Kowalak v. United States, 645 F.2d 534, 1981 U.S. App. LEXIS 14753 (6th Cir. 1981).

Opinions

JOHN W. PECK, Senior Circuit Judge.

The defendant-appellant perfected this appeal from an order of the district court denying him relief under a motion filed pursuant to 28 U.S.C. § 2255. His claim for relief was based on appellee’s alleged violation of appellant’s rights under Article IV(e) of the Interstate Agreement on De-tainers (18 U.S.C. App., hereinafter “IAD”), and on other alleged deprivations not material to this opinion. Article IV(e) reads as follows:

If trial is not had on any indictment, information, or complaint contemplated herein prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Appellant’s contention was and is that he was entitled to the entry of “an order dismissing [the charge against him] with prejudice.”

The conviction which appellant collaterally attacks in his § 2255 motion grew out of his plea of guilty to a charge of armed bank robbery under 18 U.S.C. § 2113(a) and (d). A committed sentence of eight years was imposed to run consecutively to an earlier state sentence of not less than three nor more than five years.

On January 12,1976, defendant-appellant had been arrested and charged under the federal complaint. At that time he was an [536]*536escapee from the Michigan Department of Corrections (State Prison of Southern Michigan at Jackson, hereinafter Jackson), and a federal detainer was placed on him at the Wayne County Jail. He was turned over to the Sheriff of Wayne County for transportation back to Jackson. When such transportation had been accomplished, the Sheriff gave the authorities at Jackson the federal detainer, which was placed in the prison files. Two weeks later, appellant was returned to federal custody pursuant to a writ of habeas corpus ad prosequendum, and he was arraigned on the indictment, and then again returned to Jackson on February 10, 1976.

On April 1, pursuant to a second writ of habeas corpus ad prosequendum, appellant was again taken into federal custody, and on April 9 he pleaded guilty in the United States District Court to armed bank robbery. Thereafter, on April 12, he was returned to Jackson. Pursuant to still another writ of habeas corpus ad prosequendum, appellant was again brought back to federal custody, and on June 16 sentence was imposed, and he was again returned on that day to Jackson. On that day a federal detainer was also placed on the appellant, and receipt of the detainer was formally acknowledged on June 21, 1976, by the Superintendent of Records at Jackson.

On March 9, 1978, appellant filed the § 2255 motion which initiated the present action. In that motion, appellant for the first time contended that his rights under Article IV(e) of the IAD had been violated. As previously indicated, denial of that motion was followed by this appeal.

In his memorandum opinion, the district judge stated that “[i]t is clear that in this case the provisions of the IAD were violated,” and neither party takes issue with that mixed finding of fact and conclusion of law. Implicit in that determination is the conclusion that, contrary to the government’s argument, the fact that the first federal detainer was placed in the prison file at Jackson without a formal acknowledgment of such receipt having been recorded is without legal significance. Thus there is no occasion for a remand for the taking of evidence on this point. We adopt the district court’s implicit conclusion as to the validity of that detainer.

In Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied,-U.S.-, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980) we held that a claim for relief on the ground of a violation of Art. IV(e) of the IAD was not cognizable under 28 U.S.C. § 2255 where that claim fell short of the standards set forth in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), for determining when a violation of law can be raised under § 2255. However, in Mars we noted that § 2255 relief for violations of the IAD was not foreclosed in instances where the petitioner can show that he was actually prejudiced by the violations or that his IAD rights properly asserted before the trial court were not properly addressed. 615 F.2d at 707 n.9. We need not reach the question whether the violation of the IAD asserted in the present case is cognizable under § 2255 since we conclude that appellant’s guilty plea prior to raising any question of IAD violations was a waiver of his rights under the IAD.

In United States v. Eaddy (Eaddy II), 595 F.2d 341 (6th Cir. 1979), we held that the rights created by Article IV of the IAD are non jurisdictional and waivable. We decided that Mr. Eaddy had forfeited his right to raise an IAD Article IV(e) violation by failing to assert it prior to or during trial in the district court. We reaffirmed this holding in Mars, where we concluded that that appellant had also waived any claim for relief under the IAD through his failure to raise that claim before trial. 615 F.2d at 707. The dissent appears to take the position that Eaddy and Mars are in conflict with our decision in Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In Stroble we granted 28 U.S.C. § 2254 relief to a state prisoner because of violations of that prisoner’s IAD rights. The issue of IAD violations in Stroble had not been raised until after the prisoner had been convicted. However, in Stroble the [537]*537question whether the prisoner had waived his IAD rights by failing to assert them prior to trial was never presented to or decided by this Court. We thus find no inherent conflict between Stroble and our later decisions in Eaddy and in Mars on this point.1 We conclude that Eaddy and Mars are the law of this Circuit, and that IAD rights are nonjurisdictional and waivable.

In the present case the appellant first raised his IAD claim after he had entered a plea of guilty and had been sentenced. A valid guilty plea is generally regarded as a waiver of all nonjurisdictional defects or errors. E. g., Franklin v. United States, 589 F.2d 192 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979); Gamp v. United States, 587 F.2d 397 (8th Cir. 1978).

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Bluebook (online)
645 F.2d 534, 1981 U.S. App. LEXIS 14753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomas-l-kowalak-v-united-states-ca6-1981.