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LUBLIN v. JOHNSON

February 25, 1986

ALLEN LUBLIN, Petitioner,
v.
SALLY B. JOHNSON, Superintendent of Queensboro Correctional Facility, et al., Respondent



The opinion of the court was delivered by: ALTIMARI

MEMORANDUM AND ORDER

ALTIMARI, U.S.J.:

 Petitioner Allen Lublin petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that the procedure used in procuring his attendance at proceedings on a felony complaint in the Nassau County District Court violated the Interstate Agreement on Detainers, 18 U.S.C. Appendix.

 FACTS

 During October of 1976, while petitioner was being held at the Metropolitan Correctional Center ("M.C.C.") in New York on federal firearms charges, a felony complaint was filed against him in the Nassau County District Court.

 On December 2, 1976, petitioner pled guilty to the federal charges, and was sent to M.C.C. pending sentencing.

 On January 20, 1977, a writ of habeas corpus ad

 prosequendum was issued pursuant to N.Y. Crim. Proc. L. § 580.30(2) (McKinney 1984) directing the warden of M.C.C. and the United States Marshal to produce the petitioner in Nassau County District Court. Three times in February of 1977, petitioner was brought pursuant to this writ from the M.C.C. to state court to attend proceedings on the state indictment. On each occasion, petitioner was returned to M.C.C.

 On February 22, 1977, petitioner was sent to the Lewisburg Federal Penitentiary to begin serving the federal sentence of seventeen months imposed on February 11, 1977.

 On March 3, 1977, petitioner requested a disposition of indictments, informations, or complaints (i.e. an "agreement on detainers"). The warden of Lewisburg Federal Penitentiary furnished a "certificate of Inmate Status" which indicated the term of commitment, time already served, time remaining to be served, amount of good time earned, date of parole eligibility, any decisions of the State Board of Parole relating to prisoner, maximum expiration date under the present sentence, and pending detainers. The warden indicated that the following detainers were on file as of March 3, 1977: "Poss. Stolen Property, Theft of Personal Property, Poss. of Forged Instrument, Poss. Stolen Motor Vehicle - Nassau Co., N.Y."

 On March 31, 1977, the Nassau County District Attorney's Office accepted the federal authorities' offer of temporary custody pending trial on the state indictment.

 On April 16, 1977, petitioner once again was brought to Nassau County District Court; on May 25, 1977, he moved to dismiss the state charges, alleging a violation of the Interstate Agreement on Detainers. The motion was denied, and on July 11, 1977, petitioner pled guilty to criminal possession of stolen property in the second degree, N.Y. Penal Law § 165.45. (McKinney 1975 & Supp. 1986). Petitioner was sentenced on July 21, 1977, to an indeterminate sentence of zero to three years' imprisonment that was to run concurrently with the federal sentence he was then serving.

 Petitioner has exhausted all available State remedies in accordance with the procedural requirements set out in 28 U.S.C. § 2254(b) and (c), and thus this petitioner is properly before this court. Rose v. Lundy, 45 ...


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