decision grounded partly on fact that the district court no longer had jurisdiction over a “proper custodian”, i. e., a jailer or warden
How later courts described this case
- decision grounded partly on fact that the district court no longer had jurisdiction over a “proper custodian”, i. e., a jailer or warden
Written by the judges who cited it.
The opinion
BRIGHT, Circuit Judge
(concurring).
While I too feel that the petition must be dismissed, I do so for reasons other than those stated in the majority opinion.
I entertain serious doubt as to the continued vitality of our decision in Booker v. State of Arkansas, 380 F.2d 240 (8th Cir. 1967), in light of the expanded scope of habeas corpus relief as authorized by the United States Supreme Court. See Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968) (writ of habeas corpus could issue despite the fact that petitioner had completed service of his sentence and had been released from custody), overruling Parker v. Ellis, 362 U.S. 574 , 80 S.Ct. 909 , 4 L.Ed.2d 963 (1960); Peyton v. Rowe, 391 U.S. 54 , 88 S.Ct. 1549 , 20 L.Ed.2d 426 (1968) (a petitioner in custody may attack a future consecutive sentence), overruling McNally v. Hill, 293 U.S. 131 , 55 S.Ct. 24 , 79 L.Ed. 238 (1934); and Jones v. Cunningham, 371 U.S. 236 , 83 S.Ct. 373 , 9 L.Ed.2d 285 (1963) (petitioner on parole outside the jurisdiction may be granted habeas corpus relief from an unconstitutional conviction). Word v. State of North Carolina, 406 F.2d 359 (4th Cir. 1969), reaches a conclusion contrary to Booker, supra.
While the concepts of “custody” and territorial jurisdiction are greatly relaxed, at least one vestige remains as an obstacle to Brown’s present attempt to obtain habeas corpus relief in the Arkansas federal district court. Courts have long recognized that the only proper, indispensable party who may be called upon to defend a habeas corpus petition is one exercising some power of detention or control over the petitioner. Morehead v. State of California, 339 F.2d 170 (9th Cir. 1964). In Carafas, supra, and Peyton, supra, penal institution wardens were doing so at the time the habeas corpus petitions were filed. In J.ones, supra, members of the state parole board, because of parole restrictions imposed upon the petitioner, were deemed the proper parties. Similarly, in Word, supra, North Carolina officials could properly be called upon to defend against the petition because detainers they had filed in Virginia imposed some restraint upon the petitioners.
Here, however, Brown has completely served the sentence entered upon his Arkansas conviction. He did so before the instant petition was filed. No Arkansas authorities, subject to the process of the Arkansas federal district court, presently impose any restraint upon Brown’s liberty. The only present custodial control over Brown emanates from a Texas conviction and is being exercised in Texas by Texas prison officials. Thus, in my view, want of a proper party in Arkansas is fatal to Brown’s present petition.
*680 While I note that petitioner would encounter practical obstacles 1 in successfully mounting an attack upon his Arkansas conviction in the Texas courts, I agree with the majority that in the present state of the law his remedy must be pursued there.
. Among other things, the petitioner would face the problem of producing the records of his Arkansas conviction and the testimony of witnesses residing in Arkansas to support his claim that the Arkansas conviction violated his constitutional rights. These witnesses and the custodian of these Arkansas records would not be reached ordinarily through the compulsory direct subpoena process of Texas courts. See Word, supra, 406 F.2d at 355-357 . For a general discussion of this problem, see Developments — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1160-1165, 1166-1169 (1970).