N O N P R E C E D E N T I A L D I S P O S I T I O N
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# United States Court of Appeals

F o r t h e S e v e n t h C i r c u i t C h i c a g o , I l l i n o i s 6 0 6 0 4

Submitted May 14, 2008 *

Decided May 22, 2008



### B e f o r e

F R A N K H. E A S T E R B R O O K , Chief Judge

J O H N L. C O F F E Y , Circuit Judge

D I A N E P. W O O D , Circuit Judge

No. 07

- 3192

E D D I E G E N E E V A N S , Petitioner

- Appellant
,

v

. M I C H A E L T H U R M E R , 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 wa s convicted in a Louisiana state court of armed robbery and aggravated battery. Sentenced to 35 years’ imprisonment, Evans served only 18 b efore 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 r e turned to Lo uisiana, 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 u n der 28 U.S.C. §2254, asking the federal court to direct Wisconsin not to honor the d e tainer. Evans’s theory is that the hearing held in 2003 was ina dequat e under Morrissey v. Brewer , 408 U.S. 471 (1972), which sets out the constitut ional requirements for parole

- revocation hearings . The district court dismissed the petition as unripe, ruling that

* A f t e r e x a m i n i n g t h e b r i e f s a n d t h e r e c o r d
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Evans must wait until the detainer is executed. Evans has appe aled. Although the di smissal nominally is without prejudice, Evans cannot amend his pleadings and resume the litigation. Not h ing he can do will avoid the district court’s ruling. So the decision is “final” in a practical sense and a p peal is proper. See Buc kley v. Valeo , 424 U.S. 1, 113

– 18 (1976) (permitting an immediate appeal from a dec i sion dismissing a suit as unripe).
Evans might be complaining about two things. One is the time spent in custody du ring 2003 and 2004, after Louisiana asked for his apprehe nsion and before he was se ntenced for the new armed

- robbery conviction. The other is the looming prospect of r eturn 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 pet ition) , 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 sho uld have followed the procedures of Morrissey (which governs final revocation hea rings) or the less elaborate procedures for a preliminary detention hearing.
The second objection is not moot, but it isn’t meritorious either. Wisconsin must d eliver 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 t he person had been arrested there originally; the rendering state need not and can not d upl i cate 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 Evan s a “fugitive” for the pu rpose 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 pr oposes to prosecute rather than the state where the of fender is located. Section 3 of the Compact provides: “[D]uly accredited o f ficers 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 requir ed other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain e xtradition of fug i tives 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 concl u sive upon and not reviewable within the receiving state ... . ” Wi s consin 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 di strict court recognized. Moody holds tha t 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 t hat, if he is returned to prison in Lo u isiana, he should receive credit for time served in Wisconsin), it provides no basis for r e lief against Wisconsin, whose custody of Evans is supported by a valid conviction.

A F F I R M E D