
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2272                                   WAYNE F. CROSS,                                Petitioner, Appellant,                                          v.                                 MICHAEL CUNNINGHAM,                        WARDEN OF NEW HAMPSHIRE STATE PRISON,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            John R.  Baraniak, Jr. with  whom Mark P.  Szpak, Jill J.  Chasson            ______________________            ______________  ________________        and Ropes & Gray were on briefs for petitioner.            ____________            Patrick E. Donovan,  Assistant Attorney General, Criminal  Justice            __________________        Bureau, with  whom Jeffrey R.  Howard, Attorney General, was  on brief                           __________________        for respondent.                                 ____________________                                    June 27, 1996                                 ____________________                 BOUDIN,  Circuit  Judge.    Wayne  F.  Cross,  currently                          ______________            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                  _______            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                                         -2-                                         -2-            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                                             _____    _____            (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.                                            ____________________                 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.                                                                 _____            Warden, 644 A.2d 542 (N.H. 1994).            ______                                                       -3-                                         -3-            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                                 ______     ____            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                        ______     _______            they had not been raised  by Cross in his prior Massachusetts            federal habeas petition.                                         -4-                                         -4-                 1.  Even  assuming arguendo that New  Hampshire violated                                    ________            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.                                               ____    ______            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).                                        ___            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.                                   ___ ______                 Moreover,  we do not  agree with Cross'  suggestion that            Reed  v. Farley undermines Fasano  v. Hall.   It is true that            ____     ______            ______     ____            Reed v. Farley leaves open  the possibility that, in  unusual            ____    ______            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                          ____     ______            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                                         -5-                                         -5-            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                                             ____   ______    _____            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.                                                   ___  _________ ____            Horan, 36 F.3d 1089 (1st Cir. 1994).             _____                 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                                                            _____________            Sawyer,  505 U.S.  at 338;  Rule 9(b)  following 28  U.S.C.              ______            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                                                       ____            previously proceeding pro se,  that the Massachusetts  habeas                                  ___ __            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                                         -6-                                         -6-            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.                                                                      ___            Blackledge v.  Perry, 417 U.S.  21 (1974).  On  the contrary,            __________     _____            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                                                                _________            v.  Murphy, 37 F.3d 700 (1st Cir. 1994).  The likelihood that                ______            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                                                           ______________            v. Pearce,  395 U.S. 711 (1969),  and in Beauchamp.   And, in               ______                                _________            this case, Cross did pursue his appeal.                             ___                                            ____________________                 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                    __________            detention.                                         -7-                                         -7-                   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                                        ____            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            ___                        __________________            (4th ed. 1991).                 Affirmed.                  ________                                         -8-                                         -8-
