Opinion
No. CV 05-4002706
November 29, 2005
MEMORANDUM OF DECISION
In this habeas corpus action, the facts are largely undisputed. The petitioner has been incarcerated in Connecticut since June 11, 2002, having originally received a thirty-month prison sentence. In November 2002, the state of New York lodged a detainer against the petitioner based on a bench warrant charging him with various property crimes. On or about December 4, 2002, the Connecticut department of corrections ("the department") received a request from New York authorities pursuant to the Interstate Agreement on Detainers ("IAD"), General Statutes § 54-186 et seq., for temporary custody of the petitioner in order to try him on the New York charges. The petitioner declined to agree to return to New York voluntarily pursuant to IAD Article 111. On March 10, 2003, the department forwarded the matter to the office of the attorney general with a request that that office arrange for a Cuyler hearing and an involuntary transfer to New York under IAD Article IV. See Cuyler v. Adams, 449 U.S. 433 (1981) (Article IV gives prisoners the right under the Uniform Criminal Extradition Act to a pretransfer hearing to challenge a charging state's custody request).
Section 54-186, Article III(a), provides in pertinent part:
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 the 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 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 . . .
Section 54-186, Article IV(a), provides as follows:
The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
Nothing happened on the case until November 24, 2004. At that time, the department wrote New York officials that it would not proceed under the IAD due to the petitioner's expected discharge from custody on December 3, 2004. On the latter date, the petitioner was arrested as a fugitive from New York justice. The petitioner is currently being held on a Connecticut governor's warrant pending extradition to New York.
The petitioner claims that the states of New York and Connecticut failed expeditiously to comply with Article IV, that Connecticut is estopped from extraditing the petitioner, and that the court should now dismiss the governor's warrant. Beyond the fact that the attorney general's office did not act promptly on the department's request for a Cuyler hearing, however, the petitioner cites no basis for his request. He does not claim that the state violated any specific provision of the IAD. Nor does he cite any case law that mandates dismissal of the extradition in this situation.
Although it is true that the rehabilitative purposes of the IAD would have been furthered by prompt resolution of the New York charges, see Remick v. Lopes, 203 Conn. 494, 499-500, 525 A.2d 502 (1987); Narel v. Liburdi, 185 Conn. 562, 566-67, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928 (1982), the petitioner held the key to this dilemma. He could have requested transfer to New York and a speedy trial there. See note 1 supra. For whatever reason, he failed to do so. Having sat on his rights, he is now in a poor position to complain that the state violated them.
Moreover, even if the petitioner had established some violation of Article IV, the case would be governed by our Supreme Court's decisions in Giardino v. Bourbeau, 193 Conn. 116, 126-28, 475 A.2d 298 (1984), and Narel v. Liburdi, supra, 185 Conn. 563. Those cases held that the failure of the sending state to comply with the IAD does not preclude the charging state from invoking the provisions of the extradition act. Although the violations in those cases arose under Article III rather than Article IV, under either article the fact that the sending state acts as an agent for the charging state under the IAD does not mean that the sending state can ignore its obligations under the Uniform Criminal Extradition Act. See Giardino v. Bourbeau, supra, 126-28; Narel v. Liburdi, supra, 571-72. See also General Statutes § 54-157 et seq. (Uniform Criminal Extradition Act). The prisoner's remedy, if any, for any procedural infirmities lurking in the prosecution is in the courts of the charging state, not the sending state. See Giardino v. Bourbeau, supra, 126; Narel v. Liburdi, supra, 565, 570. Because there is nothing to negate the evidence that the petitioner is still a "fugitive" from New York, which is the critical issue in an extradition case of this nature, the petitioner cannot defeat his extradition to that state. See Giardino v. Bourbeau, supra, 126-28.
Section 54-158 of Connecticut's extradition act, for example, provides: Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state.
Accordingly, the court dismisses the petition for a writ of habeas corpus. It is so ordered.