USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2272
WAYNE F. CROSS,
Petitioner, Appellant,
v.
MICHAEL CUNNINGHAM,
WARDEN OF NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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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
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Bureau, with whom Jeffrey R. Howard, Attorney General, was on brief
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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
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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
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(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.
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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
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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.
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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.
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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
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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
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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.
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Horan, 36 F.3d 1089 (1st Cir. 1994).
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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.
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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.
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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
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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
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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
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(4th ed. 1991).
Affirmed.
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