Eddie Gene Evans v. Michael Thurmer

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 14, 2008*
Decided May 22, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 07-3192
EDDIE GENE EVANS,
Petitioner-Appellant,
v.
MICHAEL THURMER, et al.,
Respondents-Appellees.
Appeal from the United
States District Court for the
Eastern District of Wisconsin.
No. 07-C-351
Lynn Adelman, Judge.
Order
In 1985 Eddie Gene Evans was convicted in a Louisiana state court of armed robbery
and aggravated battery. Sentenced to 35 years’ imprisonment, Evans served only 18 be-
fore his release on parole in 2003. He moved to Wisconsin and soon was in trouble with
the law again. He was charged with disorderly conduct, and when Louisiana learned
this it asked Wisconsin to detain Evans pending a hearing on whether his parole should
be revoked. After a hearing, Wisconsin concluded that there is probable cause to believe
that Evans has violated the terms of his parole. But before he could be returned to Lou-
isiana, he was indicted for armed robbery in Wisconsin. He pleaded no contest to this
charge in 2004 and is serving a seven-year term. Louisiana has lodged a detainer so that
he will be sent there when this imprisonment ends.
Midway through his imprisonment in Wisconsin, Evans filed this action under 28
U.S.C. §2254, asking the federal court to direct Wisconsin not to honor the detainer.
Evans’s theory is that the hearing held in 2003 was inadequate under Morrissey v.
Brewer, 408 U.S. 471 (1972), which sets out the constitutional requirements for parole-
revocation hearings. The district court dismissed the petition as unripe, ruling that
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 07-3192 Page 2
Evans must wait until the detainer is executed. Evans has appealed. Although the dis-
missal nominally is without prejudice, Evans cannot amend his pleadings and resume
the litigation. Nothing he can do will avoid the district court’s ruling. So the decision is
“final” in a practical sense and appeal is proper. See Buckley v. Valeo, 424 U.S. 1, 113–18
(1976) (permitting an immediate appeal from a decision dismissing a suit as unripe).
Evans might be complaining about two things. One is the time spent in custody dur-
ing 2003 and 2004, after Louisiana asked for his apprehension and before he was sen-
tenced for the new armed-robbery conviction. The other is the looming prospect of re-
turn to Louisiana at the end of the Wisconsin sentence.
The first of these is moot (and had been for three years before Evans filed his peti-
tion), because Wisconsin has given Evans full credit for this time against his seven-year
sentence. Detention on the parole-violation charge has not extended the length of
Evans’s custody in Wisconsin. It is therefore unnecessary to decide whether Wisconsin
should have followed the procedures of Morrissey (which governs final revocation hear-
ings) or the less elaborate procedures for a preliminary detention hearing.
The second objection is not moot, but it isn’t meritorious either. Wisconsin must de-
liver Evans to Louisiana under Article IV, §2, cl. 2 of the Constitution, which requires
each state to return persons wanted for trial in another state. The Constitution requires
the demanding state to provide a trial (or, in the case of parole, a hearing), just as if the
person had been arrested there originally; the rendering state need not and can not du-
plicate this process before turning the person over. See New Mexico ex rel. Ortiz v. Reed,
524 U.S. 151 (1998).
Perhaps the circumstances counsel against labeling Evans a “fugitive” for the pur-
pose of Article IV, §2, cl. 2, but then he is covered by the Interstate Compact for Adult
Offender Supervision, which likewise commits the trial or hearing to the state that pro-
poses to prosecute rather than the state where the offender is located. Section 3 of the
Compact provides: “[D]uly accredited officers of a sending state may at all times enter a
receiving state, and there apprehend and retake any person on probation or parole. For
that purpose, no formalities will be required other than establishing the authority of the
officer and the identity of the person to be retaken. All legal requirements to obtain ex-
tradition of fugitives from justice are hereby expressly waived on the part of states
party hereto as to such persons. The decision of the sending state to retake a person on
probation or parole shall be conclusive upon and not reviewable within the receiving
state … .” Wisconsin is a party to the Compact. See Wis. Stat. §304.16.
The district court saw a third possibility: Perhaps officials of Louisiana must travel
to Wisconsin and provide Evans a speedy revocation hearing while he is imprisoned
there. But that possibility is scotched by Moody v. Daggett, 429 U.S. 78 (1976), as the dis-
trict court recognized. Moody holds that a parole-revocation hearing may be deferred
until after an intervening term of imprisonment has expired. Anyway, Evans did not
name any official of Louisiana as a respondent, and a district court in Wisconsin would
not have personal jurisdiction over the responsible officials in Louisiana.
Evans calls his 2003 release on parole in Louisiana illegal; he believes that he should
have continued to serve his sentence there. Whatever sort of claim this might represent
against Louisiana (perhaps Evans believes that, if he is returned to prison in Louisiana,
he should receive credit for time served in Wisconsin), it provides no basis for relief
against Wisconsin, whose custody of Evans is supported by a valid conviction.
AFFIRMED

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