Thomas M. Fasano v. Frank Hall, 615 F.2d 555, 1st Cir. (1980)

615 F.
2d 555
63 A.L.R.Fed. 148
Thomas M. FASANO, Petitioner, Appellant,

v.
Frank HALL et al., Respondents, Appellees.
No. 79-1507.
United States Court of Appeals,

First Circuit.
Argued Jan. 7, 1980.
Decided Feb. 21, 1980.
Amended on Denial of Rehearing April 1, 1980.
Martin C. Gideonse, Cambridge, Mass. by appointment of the Court, for

petitioner, appellant.
Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. App. Div., Boston,
Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R.
Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on
brief, for respondents, appellees.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit
Judges.
COFFIN, Chief Judge.
Appellant Fasano appeals from the denial of his petition for a writ of habeas
corpus by the district court. The petition is based on Fasano's claim that the
steps taken by the Commonwealth of Massachusetts leading to his conviction
constituted violations of the Interstate Agreement on Detainers Act, 18 U.S.C.
App., 2, Mass.Gen.Laws c. 276, 1-1 (IAD). The district court in dismissing
the petition ruled against appellant on the merits of his claim, finding no
violations of the IAD. The appellee supports this finding; however, in addition
it contends that appellant's claims are not cognizable under the habeas corpus
statute, 28 U.S.C. 2254. Finding this contention correct, we address only the
issue of cognizability on this appeal. First, however, we summarize the relevant
facts leading up to this appeal.
A.
2
Fasano was indicted by a Middlesex County (Massachusetts) grand jury in

1974 on charges of forging and uttering, larceny, attempted larceny, and
possession of an altered license to operate a motor vehicle. On March 19, 1976,
the district attorney of Middlesex County lodged a detainer against Fasano at
the Federal Correctional Institute in Danbury, Connecticut, where he was
serving a two year sentence. In accordance with Article III of the IAD, on April
13 Fasano filed a request for final disposition of the Middlesex indictments.
Before Middlesex County responded by requesting custody of Fasano for a

trial, the Superior Court of Massachusetts in Suffolk County, acting with regard
to an indictment unrelated to the Middlesex indictment, issued a writ of habeas
corpus ad prosequendum pursuant to which Fasano was delivered to the
custody of Suffolk County authorities on April 28, 1976. On May 17, the
Middlesex district attorney requested temporary custody of Fasano from
Danbury officials for a trial tentatively set for May 21. The Danbury officials
replied on May 19 that Fasano was unavailable since he had been transferred to
Suffolk County.
Defaults under the Middlesex indictments were entered against Fasano, and no
other actions were taken by the Middlesex district attorney concerning Fasano
until he was informed by Danbury officials that Fasano had returned to
Danbury. The Middlesex district attorney again requested custody, and, on July
23, Fasano was delivered to the custody of Middlesex County.
The defaults on the indictments were removed and trial was set for September
20. The trial date was then continued to September 28, at which time counsel
was for the first time appointed. The newly appointed counsel requested a
"mid-October" trial, which was scheduled for October 7.
On October 7, Fasano declared his intention to file a pro se Motion to Dismiss

under the IAD. The district attorney requested a week's delay to study the issues
raised by the motion, and, with the agreement of appointed counsel, a
continuance was granted until October 15. On that date, neither Fasano, who
was in the courthouse lock-up, nor his appointed counsel were present at the
call of the list. The court therefore continued the case again, until November 2.
On that date, the court heard and denied the Motion to Dismiss, and reset the
trial for November 8, when it finally commenced.
Fasano was convicted and filed an appeal in state court on the basis of the
denial of his Motion to Dismiss. He claimed that the failure of the Middlesex
district attorney to attempt to try him before he was returned to Danbury from
Suffolk County constituted a violation of Article III(d) of the IAD, and that the
continuances granted beyond October 10, which was 180 days after his filing of
the written request for final disposition, violated Articles III(a) and V(a). The
Massachusetts Appeals Court ruled against Fasano, finding no violations of the
IAD, and further review was denied by the Supreme Judicial Court of
Massachusetts. The district court, in dismissing Fasano's petition, also found
that the IAD had not been violated.
B.
8
Under the general habeas corpus statute, 28 U.S.C. 2254, relief is available
from a federal court on the grounds that a state prisoner "is in custody in
violation of the Constitution or laws or treaties of the United States." Despite
the broad language of the statute, its application historically has been limited in
various respects since the enactment of its original version in 1867, Act of Feb.
5, 1867, c. 28, 1, 14 Stat. 385. See Stone v. Powell, 428 U.S. 465, 475, 96
S.Ct. 3037, 3043, 49 L.Ed.2d 1067 (1976). See generally, P. Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev.
441 (1963); Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev.
1038, 1042-72 (1970).
Generally, the question of cognizability of claims under 2254 and its federal
counterpart, 28 U.S.C. 2255, has focused on claims which are based upon
assertions of constitutional violations, rather than violations of other federal
laws. Indeed, despite the literal language of the statute, there was substantial
confusion about whether or not any nonconstitutional claims, other than
perhaps those pertaining to jurisdictional matters, were cognizable. See Hill v.
United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962);
Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963)
("State prisoners are entitled to relief on federal habeas corpus only upon
proving that their detention violates the fundamental liberties of the person,
safeguarded against state action by the Federal Constitution.") (dictum);
Developments in the Law, supra, 83 Harv.L.Rev. at 1071.
10
In Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 2304, 41 L.Ed.2d
109 (1974), the Supreme Court ended this confusion for federal habeas corpus
and held that nonconstitutional federal claims were cognizable under 2255 if
"the claimed error of law (is) 'a fundamental defect which inherently results in a
complete miscarriage of justice.' " Davis v. United States, supra, at 346, 94
S.Ct. at 2305, quoting Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468,
472, 7 L.Ed.2d 417 (1962). Under Davis, therefore, it would appear that the
question presented by this appeal is whether the asserted violations of the IAD
upon which Fasano bases his petition are "fundamental defect(s)" leading to "a
complete miscarriage of justice".
11
Appellant, however, contends that the above stated standard of cognizability set
forth in Davis, a 2255 case, should not be applied in this 2254 case. He
argues, in effect, that a policy underlying the availability of habeas relief is the
need to have a federal forum to determine issues of federal law, and that
therefore 2254 cases, in which the first forum is state, should have a lower
threshold of cognizability than 2255 cases, in which the trial forum is federal.
12
While this argument is not without some force, it is nevertheless unpersuasive.

To the extent that issues of federalism have affected the interpretation of
2254, the tendency may be towards making 2254 more, rather than less,
restrictive than 2255 due to considerations of comity. See Francis v.
Henderson, 425 U.S. 536, 539, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976).
Compare Stewart v. Cox, 344 F.2d 947 (10th Cir. 1965) ("State prisoners may
obtain relief in federal courts only when rights guaranteed them by the
Constitution of the United States have been denied.") with Hall v. United
States, 410 F.2d 653 (4th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24
L.Ed.2d 436 (1969) (habeas review of nonconstitutional errors by federal
district court allowed). Moreover, the reliance that appellant's federal forum
rationale places upon an assumption that state judges will be less conscientious
than federal judges in enforcing the IAD is not in our opinion sound. See Stone
v. Powell, supra, 428 U.S. at 493-94, 96 S.Ct. at 3052.
13
More importantly, the Supreme Court precedents leave no room for appellant's
suggested dual standard. Starting with its first substantial discussion of 2255,
see United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952),
the Court has without exception repeatedly held that sections 2254 and 2255
are identical in scope. See e.g., Heflin v. United States, 358 U.S. 415, 421, 79
S.Ct. 451, 454, 3 L.Ed.2d 407 (1959)) (concurring opinion of five justices);
Hill v. United States, supra ; Davis v. United States, supra. In this circuit, we
have already taken cognizance of this fact, see Vitello v. Gaughan, 544 F.2d 17,
18 (1st Cir. 1976), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388
(1977). Even in those 2254 cases in which appellant's suggested "federal
forum" rationale for a lower standard of cognizability would apply most
forcefully, i. e., cases in which claims of constitutional magnitude are rejected
by state courts, the Supreme Court has applied the Davis standard. See Stone v.
Powell, supra, 428 U.S. at 477, n. 10, 96 S.Ct. at 3044, n. 10.
14
We therefore hold that the Davis standard of cognizability applies to this 2254
petition.
C.
15
Applying this standard, we find that the alleged violations of the IAD upon
which Fasano bases his claims are not "fundamental defects" indicating a
"miscarriage of justice". In reaching this finding, we note first that the two
circuit courts that have addressed the issue in light of Davis have held that IAD
violations are generally not cognizable in a habeas proceeding. See Hitchcock
v. United States, 580 F.2d 964, 966 (9th Cir. 1978) (asserted violation of IAD
provisions "falls far short of a 'fundamental defect' . . . that might justify section
2255 relief"); Edwards v. United States, 564 F.2d 652 (2d Cir. 1977) (violations
of IAD not cognizable under 2255). Those courts that have held that claims
based on IAD violations are cognizable in habeas proceedings have done so
simply because they found the IAD to be a "law" of the United States, and thus
they were apparently unaware of the analysis mandated by Hill and Davis. See
Echevarria v. Bell, 579 F.2d 1022, 1025 (7th Cir. 1978); United States ex rel.
Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975). Cf. the two opinions of the
Sixth Circuit in Stroble v. Egeler, 547 F.2d 339 (6th Cir. 1977), opinion
following decision on remand, 587 F.2d 830 (1978), cert. denied, 440 U.S. 940
(1979) (granting habeas corpus for an IAD violation, but stating that more than
a bare violation of the IAD time limits had to be shown).
16
Additionally, the fact that the violations of the IAD alleged by appellant had no
bearing on the determination of his guilt or innocence is particularly important,
although not necessarily dispositive, in determining cognizability in a habeas
proceeding. The central purpose of the habeas writ is to provide a collateral
means of redressing the wrong inherent in the incarceration of one who is not
guilty. Schneckloth v. Bustamonte, 412 U.S. 218, 256-58, 93 S.Ct. 2041, 206263, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In Davis itself, the Court
found the asserted violation of a nonconstitutional federal law cognizable
because it raised the possibility that the petitioner might be incarcerated for acts
that were not a crime. In sharp contrast, there is no such possibility of a similar
injustice in this case nor are there alleged here such egregious IAD violations
that might present " 'exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.' " Davis v. United States,
supra, 417 U.S. at 346, 94 S.Ct. at 2305; see Stroble v. Egeler, supra. Hence
there is no need to provide collateral relief.*
17
Denial of petition affirmed.
Our holding is by no means intended to imply that the policies underlying the
IAD are not important. The fact that policies underlying a law are important is
not, however, sufficient to render a claimed violation of that law cognizable in a
habeas proceeding. For example, the policies of the Fourth Amendment are
incontestably important, yet claims based upon asserted violations of the Fourth
Amendment are generally not cognizable in habeas proceedings. Stone v.
Powell, supra. In either case, the policies, while important, are not related to the
guilt or innocence of the petitioner
Moreover, the policies underlying the IAD sanctions would not in fact be
furthered by making habeas relief available in cases such as this one. To follow
the reasoning of the Court in Stone, it is almost inconceivable that state officials
would less carefully adhere to the IAD if they knew that violations of the
agreement could be raised only in state court or on direct review by the
Supreme Court.

Thomas M. Fasano v. Frank Hall, 615 F.2d 555, 1st Cir. (1980)

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Thomas M. Fasano v. Frank Hall, 615 F.2d 555, 1st Cir. (1980)

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615 F.

Thomas M. FASANO, Petitioner, Appellant,

United States Court of Appeals,

Martin C. Gideonse, Cambridge, Mass. by appointment of the Court, for

Fasano was indicted by a Middlesex County (Massachusetts) grand jury in

Before Middlesex County responded by requesting custody of Fasano for a

On October 7, Fasano declared his intention to file a pro se Motion to Dismiss

While this argument is not without some force, it is nevertheless unpersuasive.

Denial of petition affirmed.

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