505 F.

2d 1220

Robert Wayne GRANT, #38013. Appellant,

v.
Marvin HOGAN, Warden, U.S. N.E.P., Appellee.
No. 74-1266.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Sept. 18, 1974.
Decided Nov. 20, 1974.

Robert Wayne Grant, pro se.

S. John Cottone, U.S. Atty., Harry A. Nagle, Michael D. McDowell,
Lewisburg, Pa., for appellee.
Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:

This case presents the question of whether a federal prisoner, against whom a
state other than the one of confinement has lodged a detainer based on a
pending criminal charge, must first pursue his remedies under the Interstate
Agreement on Detainers, 18 U.S.C. App. Article III,1 before seeking relief from
that detainer in federal court.

Since January 5, 1972, Petitioner Grant has been a prisoner at the Lewisburg
federal penitentiary in Pennsylvania, and is currently serving a 15-year term on
a federal conviction, with a mandatory release date of August 16, 1981. On
February 2, 1972, the Connecticut Attorney General lodged a detainer against
Petitioner on the basis of a charge pending in that state for 'robbery with
violence.' Grant had been prosecuted on that charge in 1970, but a mistrial
resulted, and the State of Connecticut has taken no steps since then to initiate a
second trial.

Although the prison officials at Lewisburg promptly notified Grant of the

detainer and of his rights under the Interstate Agreement, he did not seek to
invoke the provisions of the Agreement. Rather, over a year later, on February
21, 1973, he filed a motion with the Connecticut Superior Court in Hartford to
dismiss the criminal charge for lack of prosecution. This motion was summarily
denied on March 2, 1973, and there is no indication anywhere in the record that
Grant appealed from that dismissal or took any further action in Connecticut
with respect to the outstanding indictment. On November 29, 1973, allegedly
after making repeated requests to George C. Nye of the records office at
Lewisburg to remove the detainer, he sought relief in the United States District
Court for the Middle District of Pennsylvania by means of a pro se petition
under 28 U.S.C. 2255. The district court dismissed the petition on the ground
that Grant had failed to pursue his remedies under the Interstate Agreement and
had failed to request that the Connecticut charge be acted upon through the
mechanism provided by the Agreement. It is from this ruling that the petitioner
appeals. We affirm.

The law with respect to attacks on detainers presents a number of complex

procedural hurdles for lawyers as well as for pro se litigants,2 and thus we
consider it necessary to discuss in some detail the variety of possible routes a
prisoner may pursue and their applicability to this case.

We will first note what is not involved in this case. In his petition filed with the
district court and in his brief on appeal, Grant makes clear that he does not seek
to bar prosecution on the underlying indictment, even though he claims that he
has been denied his constitutional right to a speedy trial. Rather, he seeks relief
from the detainer through an order requiring the Respondent, the warden of the
Lewisburg penitentiary, to 'hold for naught' the Connecticut detainer and to give
it no effect. Thus, this case is not directly controlled by those decisions which
have held that a prisoner may sue in habeas corpus either to demand an
immediate trial3 or to bar prosecution on the underlying charge on speedy trial
grounds. 4

Furthermore, the Petitioner does not challenge as unconstitutional the effect

which the Lewisburg prison officials may be giving the detainer. The lodging
of detainers frequently results in the placing of additional restrictions on
prisoners and the loss of opportunities to participate in rehabilitation programs
and receive parole, and the courts have shown an increasing willingness to
grant habeas corpus or other types of relief against such restrictions.5 While the
Petitioner here states that he is relieved the detainer in order to be relieved of its
adverse effects, the thrust of his challenge is not directed against those effects,
but rather against the detainer itself, which he claims is invalid because of the
failure of Connecticut officials to afford him a speedy trial on the underlying

indictment. His challenge to the restrictions is therefore only incidental to his

basic challenge to the detainer. 6
7

It is clear that habeas corpus is a proper vehicle for challenging a detainer on

the ground that prosecution on the underlying charges would be
unconstitutional. In United States ex rel. Jennings v. State of Pennsylvania, 429
F.2d 522, 523 (3d Cir. 1970), this Circuit held that a state prisoner may sue
under 28 U.S.C. 2254 for an order directing his warden not to hold him subject
to the out-of-state detainer.7 We also noted there that habeas corpus relief
would be available only if the prisoner had exhausted the remedies available to
him in the indicting state when seeking his right to a speedy trial on the
underlying charges.8

Unlike Jennings, however, this suit can be brought only under28 U.S.C. 2241,9
which does not by its terms require the exhaustion of state remedies or of any
other types of remedies. Nevertheless, despite the absence of an explicit
exhaustion requirement in section 2241, we have held that federal prisoners
suing under section 2241 must first exhaust available administrative remedies.
In Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973), we held that a prisoner
suing under section 2241 to seek credit toward a sentence for time allegedly
spent in prison prior to sentencing must first exhaust administrative remedies by
seeking relief from the Attorney General or the Director of the Bureau of
Prisons after his request had initially been denied by his warden. We required
such exhaustion because Congress had enacted a statute, 18 U.S.C. 3658, which
provided that the Attorney General shall give federal prisoners whatever credit
they are entitled to.10

Whether the remedies affored by the Interstate Agreement be characterized as

administrative or judicial, we believe that this is even a stronger case for
requiring exhaustion by federal prisoners than Soyka, since the remedies
provided by the Interstate Agreement are more explicit. In making the United
States a party to the Agreement, Congress thereby established a simple
procedure which permits the speedy disposition of any untried indictment,
information or complaint and the dismissal of any untried charges, along with
the removal of any detainer based thereon, where the indicting state has not
responded within the required period of time to a prisoner's request. It is
evident, therefore, that the Agreement provides an effective remedy for the
disposition of the Petitioner's claim and that requiring resort to the Agreement
may make unnecessary any intervention by the federal courts.11 See McKart v.
United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). We
therefore believe that it is in the interests of soud judicial administration, and
consistent with established principles, to require that prisoners pursue those

remedies before seeking relief in the federal courts under section 2241.
10

While we affirm the district court's action requiring resort to the Interstate
Agreement in this case, we recognize that there may be unusual circumstances,
not present here, in which failure to pursue remedies under the Agreement
would not necessarily preclude habeas corpus relief. If, for example, the
Petitioner had demanded a speedy trial of the Connecticut courts without
invoking the provisions of the Agreement, had moved to dismiss the charges
for lack of speedy prosecution, and had sought and obtained appellate review of
the denial of his motion to dismiss, habeas corpus relief might the available
despite his failure to pursue his remedies under the Interstate Agreement. In
such a situation, where the highest state court in Connecticut had already
decided that the Petitioner's right to a speedy trial had not been violated, it
would appear useless to require resort to the Agreement. In this case, however,
the only action the Petitioner took in Connecticut was to file a motion to dismiss
the charges for lack of prosecution. He neither requested a speedy trial nor
sought relief from a higher state court, and it is clear that a prisoner must do at
least both before seeking federal habeas corpus relief.12

11

The final question remaining is whether the Petitioner could have circumvented
the exhaustion requirement by seeking some form of relief from the detainer
other than habeas corpus relief. Since this is a pro se case, we are obligated to
consider all the possible forms of relief suggested by the Petitioner's challenge.
However, on examining the other possibilities, we conclude that no other form
of relief is available to the Petitioner. 13

12

Since the warden at Lewisburg is a federal official, the Petitioner cannot obtain
jurisdiction under 28 U.S.C. 1343(3) for a Civil Rights action pursuant to 42
U.S.C. 1983. While he might be able to sue under 28 U.S.C. 1331, which
provides for a general federal question jurisdiction, he would have to satisfy the
$10,000 jurisdictional amount requirement, a difficult though not
insurmountable problem where injunctive relief is sought with respect to
alleged deprivations of constitutional rights.14 The Petitioner here, to course,
has made no attempt to satisfy the jurisdictional amount requirement.15

13

Neither mandamus under 28 U.S.C. 1361 nor the Administrative Procedure

Act, 5 U.S.C. 701-706, are available, since they provide relief only where a
clear duty is owed the plaintiff or there is an abuse of discretion, and it is hard
to see how the federal warden at Lewisburg owes a duty not to recognize a
detainer which may be invalid through the inaction of Connecticut officials or
has abused his discretion by recognizing it. It is also well recognized that
mandamus will lie only when no alternative and adequate remedy is available.

See Burnett v. Tolson, 474 F.2d 877, 882 (4th Cir. 1973); Carter v. Seamans,
411 F.2d 767, 773 (5th Cir. 1969). The availability of remedies under the
Interstate Agreement thus clearly precludes mandamus. In fact, we have
previously held that federal prisoners suing in mandamus must exhaust
available administrative remedies. Waddell v. Alldredge, 480 F.2d 1078, 1079
(3d Cir. 1973). Finally, with respect to the Administrative Procedure Act, this
Circuit has consistently taken the position that the A.P.A. does not provide an
independent basis for jurisdiction. See Zimmerman v. United States, 422 F.2d
326, 330 (3d Cir. 1970); Local 542, IUOE v. NLRB, 328 F.2d 850, 854 (3d Cir.
1964).
14

The judgment of the district court will be affirmed.

Act of Dec. 8, 1970, Pub.L.No. 91-538, 1-8, 84 Stat. 1397. In enacting this law,
Congress thereby made the United States a party to the Agreement, which has
also been entered into by 37 states. Both Pennsylvania, 19 P.S. 1431-1438, and
Connecticut, C.G.S.A. 54-186 to 54-192, are parties
The purpose of the Agreement is to permit speedy disposition of any untried
indictment, information or complaint on the basis of which a detainer has been
lodged against a prisoner in another party state. Article III(a) of the Agreement
provides that if a prisoner against whom a detainer has been lodged causes to be
delivered to the prosecuting officer and the appropriate court a written request
for final disposition of the outstanding charges against him, he must be brought
to trial within 180 days, unless any continuances have been granted for 'good
cause.' Article III(b) provides that such a written request shall be given by the
prisoner to the warden who has custody over him, who shall then promptly
forward the request to the appropriate prosecutor and court. If the prisoner is
not brought to trial within the 180 day period, assuming no continuance has
been granted, Article V(c) of the Agreement provides that 'the appropriate court
of the jurisdiction where the indictment, information, or complaint has been
pending shall enter an order dismissing the same with prejudice, and any
detainer based thereon shall cease to be of any force or effect.' The Agreement
also permits a state to move on its own to bring the prisoner to trial, and
provides that if it fails to try him within 120 days after it obtains custody of the
prisoner, all charges must be dismissed. Article IV(a), (c) and V(c).

See generally Wexler and Hershey, Criminal Detainers, in a Nutshell, 7

Crim.L.Bull. 753 (1971); Note, Convicts-- The Right to a Speedy Trial and the
New Detainer Statutes, 18 Rutgers L.Rev. 828 (1964)

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35
L.Ed.2d 443 (1973)

Kane v. State of Virginia, 419 F.2d 1939 (4th Cir. 1970). Both Braden and
Kane held that habeas corpus relief was available under 28 U.S.C. 2254 where
a prisoner has demanded a speedy trial and has exhausted the remedies of the
indicting state. Since neither Braden nor Kane involved actions where the
Interstate Agreement on Detainers was operative, those decisions shed no light
on the question of whether a prisoner suing to bar a pending prosecution must
first pursue his remedies under the Agreement

See Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970);
United States ex rel. Jennings v. Pennsylvania, 429 F.2d 522, 523 n. 4 (3d Cir.
1970); Cooper v. Lockhart, 489 F.2d 308, 315 (8th Cir. 1973); Holt v. Moore,
357 F.Supp. 1102 (W.D.N.C.1973); Wexler and Hershey, Criminal Detainers in
a Nutshell, 7 Crim.L.Bull. 753, 768 & n. 85 (1971). The Supreme Court in
Nelson held that a state prisoner seeking habeas corpus relief from the adverse
effect given the detainer by the prison officials must first exhaust his remedies
in the confining state. As Petitioner Grant is in federal prison, that principle
would seem to require him to exhaust his administrative remedies with the
Lewisburg prison officials before suing in habeas corpus for this type of relief.
Cf. Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973)

Since the Petitioner is not primarily challenging specific adverse effects

flowing from the detainer, we need not consider whether this repeated
ineffectual demands on Mr. Nye to remove the detainer, if in fact made, would
consitute a sufficient exhaustion of remedies. Similarly, we do not pass on the
question of whether, if the Petitioner had primarily been seeking relief from the
adverse effects given the detainer by the Lewisburg prison officials, he would
be required to pursue his remedies under the Interstate Agreement. Since the
Agreement provides for the speedy disposition of any pending charges and for
the possible removal of the detainer on which those charges are based, it may
not be relevant to a suit which solely challenges the practices and policies of the
prison officials without challenging the validity of the detainer itself. It is clear,
however, that some form of exhaustion would be required. See note 5 supra.
Finally, we reserve judgment on the question of what types of effects given a
detainer are subject to constitutional attack

See also Trigg v. Moseley, 433 F.2d 364, 366 (10th Cir. 1970). Cf. Weiss v.
Blackwell, 310 F.Supp. 360 (N.D.Ga.1969); Lawrence v. Blackwell, 298
F.Supp. 708 (N.D.Ga.1969); Caruth v. Mackell, 7 Crim.L.Rep. 2414 (E.D.N.Y.
July 15, 1970)

While the relief sought by the prisoner in Jennings, supra, was to remove the
detainer rather than to bar prosecution for the charges on which the detainer is
based, the exhaustion requirement for the two types of actions it essentially the
same, since both types seek relief from the failure of the foreign state to provide
the prisoner his constitutional right to a speedy trial. In this respect we find
persuasive the reasoning of the Tenth Circuit which rejected the argument that
state remedies need not be exhausted where only the 'limited relief' of removing
the detainer is sought:
Relief from the detainer in federal habeas (corpus) proceedings is necessarily
predicated on a determination that the petitioner's federal constitutional right to
a speedy trial on the underlying charge has been irremediably violated. This
decision is primarily for the state court where the charge is pending, not the
federal court for the district within which the prisoner is incarcerated.
Trigg v. Moseley, 433 F.2d 364, 366 (10th Cir. 1970).

While the Petitioner brought this action under 28 U.S.C. 2255, that section is
clearly inapplicable since he is not collaterally attacking a federal sentence.
Similarly, 28 U.S.C. 2254 is inapplicable, since he is not suing state officials,
whether in the indicting or in the confining state. The only proper jurisdictional
basis for this suit is 28 U.S.C. 2241, the general habeas corpus provision. See
Soyka v. Alldredge, 481 F.2d 303, 304 (3d Cir. 1973)

10

See also Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973), in which we held
that a prisoner suing in mandamus under 28 U.S.C. 1361 must first exhaust
available administrative remedies, even though the remedies there were not
provided by statute but by a Bureau of the Persons Policy Statement

11

In the event that a prisoner's request for disposition of the underlying charges is
not acted upon within 180 days, there remains the question of whether a
prisoner thereafter may immediately seek habeas corpus in federal court. In
Jennings, supra, we remanded to the district court to determine whether the
prisoner there had exhausted the remedies provided by the indicting state,
despite previously noting that he had promptly complied with the procedural
requirements of the Interstate Agreement. Since Jennings involved a suit under
28 U.S.C. 2254, which explicitly requires the exhaustion of state remedies, it
does not necessarily require a similar result for actions brought by federal
prisoners under 2241. At the present time, however, we express no opinion as
to whether Grant would be required to exhaust Connecticut state remedies by
seeking dismissal of the charges and by appealing to higher Connecticut courts
if his request under the Interstate Agreement is not acted upon within 180 days

12

See e.g., Kane v. State of Virginia, 419 F.2d 1369, 1373 (4th Cir. 1970), where

the court enunciated the following prerequisites to federal habeas corpus relief:
(1) that the prisoner demanded a speedy trial, (2) that the state nevertheless
failed to make a diligent effort to obtain him for trial, and (3) that he has
exhausted his state remedies as required by 28 U.S.C. 2254 by seeking
dismissal of the charges against him because of unconstitutional delay.
Furthermore, the court in Kane held that only one of the three prisoners in that
case, the one who had sought further judicial relief after failing to obtain a
favorable ruling from the trial court, had exhausted his state remedies. On the
necessity to exhaust appellate remedies, see Loren v. State of Texas, 440 F.2d
1182 (5th Cir. 1971); Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970); Note,
Developments-- Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1095-97 (1970).
13

In view of this conclusion, we need not consider whether the Supreme Court's
recent decision is Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973), mandates that this action be brought only under habeas
corpus

14

See e.g., Spock v. David, 469 F.2d 1047, 1051-1052 (3d Cir. 1972); Sedivy v.
Richardson, 485 F.2d 1115, 1122-1125 (3d Cir. 1973) (Adams, J., concurring);
Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973)

15

We therefore find it unnecessary to consider whether, if the Petitioner had

alleged the requisite $10,000 of damages, he would nevertheless be required to
exhaust his remedies pursuant to the Interstate Agreement before suing under
1331