Petition — Pacileo v. Walker

IN THE SUPREME COURT OF THE

October Term, 1979™*" —

No.

RICHARD F. PACILEO, SHERIFF,

Petitioner,

V.

JAMES DEAN WALKER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

GEORGE DEUKMEJIAN, Attorney General

of the State ot California

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General

Criminal Division

ARNOLD 0. OVEROYE

Assistant Attorney General

GREGORY W. BAUGHER

Deputy Attorney General

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 445-6981

Attorneys for Petitioner

TOPICAL INDEX

Page

OPINION BELOW 1

JURISDICTION 2

QUESTION PRESENTED 3

STATUTES INVOLVED a

STATEMENT OF THE CASE 4

ARGUMENT

IN AN INTERSTATE EXTRADITION

PROCEEDING, THE COURTS OF THE

"ASYLUM" OR "SENDING" STATE

LACK JURISDICTION TO REVIEW

THE CONSTITUTIONALITY OF THE

PRISONS IN THE DEMANDING STATE 8

CONCLUSION 23

TABLE OF AUTHORITIES CITED

Page

Appleyard v. Massachusetts

EE Ee ee ae 17

Biddinger v. Commissioner of Police

See Wa, EEO 6 st 6 tt lw 8 ew 19

Commonwealth of Kentucky v. Dennison

(1860) 24 How. 66, 100-103. k7,20

Drew v. Thaw

YS - re 19

Finney v. Arkansas Board of

Corrections (8th Cir. 1974)

505 F.2d 194 i area 14

Finney v. Hutto

een. seems SLO F.SUpp. .... 14

Finney v. Hutto

(8th Cir. 1977) 548 F.2d 740 ... .14,15

Finney v. Mabry

(E.D. Ark. 1978) 458 F.Supp. 720 .. 15

Hogan v. O'Neill

rr 5 5 ls klk tlw 18

Holt v. Hutto

(E.D. Ark. 1973) 363 F.Supp. 194 .. 14

Holt v. Sarver

(E.D. Ark. 1969) 300 F.Supp. 825 .. 14

Holt v. Sarver

(E.D. Ark. 1970) 309 F.Supp. 362 .. 14

ii.

TABLE OF AUTHORITIES CITED

Holt v. Sarver

(8th Cir. 1971) 442 F.2d 304 .

Hutto v. Finney .

(1978) 437 U.S. 678

Hyatt v. Corkran

(1903) 188 U.S. 691

Innes v. Tobin

(1916) 240 U.S. 127

Lascelles v. Georgia

(1893) 148 U.S. 537

Marbles v. Creecy

(1909) 215 U.S. 63

Matter of Strauss

(1905) 197 U.S. 324

McNichols v. Pease

(1907) 207 U.S. 100

Michigan v. Doran

(1978) 439 U.S. 282

Nevada v. Hall

(1979) 440 U.S. 410

Pearce v. Texas

(1694) 155 U.S. 3Li

Pierce v. Creecy

(1908) 210 U.S. 387

iii.

Page

14

15

17

16

. 19,20

19

17

18

Passim

17

19

» 0,589

TABLE OF AUTHORITIES CITED

(Continued )

Ponzi v. Fessenden

(1922) 258 U.S. 254

Roberts v. Reilly

(1885) 116 U.S. 80

Strassheim v. Daily ee

(IGE) 22% U.S. 200...

Sweeney v. Woodall

(1952) 344 U.S. 86

AUTHORITIES

United States Constitution

art. IV, § 2; G@leuse Zz

United States Constitution

Eighth Amendment

CODES

United States Code, § 3182

tit. ‘is ;

California Penal Code

§§ 1548.1

1548.2

iv.

Page

17

18

19

12 ,13,16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

RICHARD F. PACILEO, SHERIFF, )

cies

.

JAMES DEAN WALKER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Petitioner, the Sheriff of El Dorado

County, California, prays that a writ of

certiorari issue to review the judgment

or decree of the Supreme Court of the

State of California entered on April 9,

1980, in the matter of James Dean Walker

on Habeas Corpus.

OPINION BELOW

The judgment or decree of the

lL.

Supreme Court of the State of California,

staying the extradition of James Dean

Walker pending a hearing to decide the

petition for writ of habeas corpus on its

merits, is set out in Appendix A. It is

an unreported judgment or decree which is

nevertheless final as to the issues pre-

sented herein. The order denying a re-

hearing is set out in Appendix B.

JURISDICTION

The judgment or decree of the

Supreme Court of the State of California

was filed on April 9, 1980. Under

California law, that order is final as to

the issues raised in this petition.

(See Atlantic Richfield Co. v. Superior

Court (1975) 51 Cal.App.3d 168, 170; 124

Cal.Rptr. 63; Yoakum v. Small Claims

Court (1975) 53 Cal.App.3d 398; 125 Cal.

Rptr. 882; Lang v. Superior Court (1975)

53 Cal.App.3d 852; 126 Cal.Rptr. 122.) A

2

timely application for rehearing was

denied on April 15, 1980. The jurisdic-

tion of this Court is invoked under

28 U.S.C. 1257(3) and Rule 22 of the

Revised Rules of the Supreme Court of

the United States.

QUESTION PRESENTED

Whether in the context of an inter-

state extradition proceeding, the courts

of the "asylum" or "sending" state have

jurisdiction to conduct an evidentiary

hearing on habeas corpus to determine the

merits of a fugitive's allegation that

the prison in which the demanding state

may incarcerate him is not presently

being operated in conformance with the

Eighth Amendment of the United States

Constitution.

STATUTES INVOLVED

The Constitutional and statutory

provisions involved are set forth in

s B

Appendix C. They are:

United States Constitution, article

IV, section 2, clause 2;

Title 18, section 3182 of the United

States Code;

California Penal Code sections

1548.1 and 1548.2.

STATEMENT OF THE CASE

On December 11, 1979, the Governor

of Arkansas executed a requisition for

the arrest and rendition of James Dean

Walker, who was then within the State of

California and was alleged to be a fugi-

tive from justice. The Governor of

Arkansas submitted proof that on

December 6, 1965, after being convicted

of murder in the first degree, James Dean

Walker was sentenced to the Arkansas State

Penitentiary "for the remainder of his

natural life.'' Walker was received by the

Arkansas Department of Corrections on or

4.

about December 14, 1965. On or about

April ‘4, 1975, Walker escaped from the

custody of the Department of Corrections.

By information number 75-18, filed on or

about April 11, 1975, the prosecuting

attorney for Lincoln County, Arkansas,

charged Walker with the crime of escape,

and a bench warrant was issued for

Walker's arrest.

On February 13, 1980, the Governor

of California honored the request of the

Governor of Arkansas and duly issued a

warrant of arrest and rendition. This

warrant was then served upon James Dean

Walker by the Sheriff of El Dorado County.

Thereafter, Mr. Walker challenged

his custody under the California

Governor's warrant by successively filing

petitions for writ of habeas corpus in

which he alleged that the Arkansas prisons

to which he would be returned violated

ss

the Eighth Amendment proscription against

cruel and unusual punishment. On

February 27, 1980, the Superior Court of

El Dorado County denied Mr. Walker's

first petition (Appendix D). On March 6,

1980, the Court of Appeal, Third Appel-

late District, denied Mr. Walker's second

petition for writ of habeas corpus (Appen-

dix E). On March 12, 1980, the United

States District Court for the Eastern

District of California denied Mr. Walker's

third petition (Appendix F).

Mr. Walker then applied to the

California Supreme Court for a writ of

habeas corpus. On April 9, 1980, that

court issued an order directing the El

Dorado County Superior Court "to conduct

hearings to determine if the penitentiary

in which Arkansas seeks to confine peti-

tioner is presently operated in conformance

with the Eighth Amendment of the United

6.

States Constitution and thereafter decide

the petition on its merits" (Appendix A).

A timely petition for rehearing was denied

on April 15, 1980 (Appendix B).

On April 21, 1980, upon the appli-

cation of the petitioner herein, Justice

Rehnquist issued an order temporarily

staying the effect of the California

Supreme Court's order of April 9. Justice

Rehnquist ordered that a response to the

application for stay be filed on or be-

fore April 28, 1980. On May 1, Justice

Rehnquist continued the stay order pend-

ing the timely filing and disposition of

a petition for writ of certiorari.

ARGUMENT

IN AN INTERSTATE EXTRADITION

PROCEEDING, THE COURTS OF THE

"ASYLUM" OR "SENDING" STATE

LACK JURISDICTION TO REVIEW

THE CONSTITUTIONALITY OF THE

PRISONS IN THE DEMANDING STATE

The California Supreme Court. has

exceeded its jurisdiction and has violated

article IV, section 2, clause 2 of the

United States Constitution, as well as the

implementing laws and interpretive de-

cisions of this Court, by ordering that

a hearing be held in a California Superior

Court to determine whether the peniten-

tiary in which the State of Arkansas

intends to inmcarcerate James Dean Walker

is currencly operated in a manner which

is consistent with the Eighth Amendment.

Article IV, section 2, clause 2

of the Constitution provides:

"A person charged in any State with

treason, felony, or other crime, who

8.

shall flee from justice, and be found

in another State, shall on demand of

the executive authority of the State

from which he fled, be delivered up,

to be removed to the State having

jurisdiction of the crime."

This provision has been implemented by

the Congress in Title 18 of the United

States Code, section 3182, and it has been

supplemented by the states through the

adoption of the Uniform Criminal Extra-

dition Act. In California, the pertinent

provisions are Penal Code sections 1548.1

and 1548.2.

The Extradition Clause of the Con-

stitution and its supporting legislation

have been interpreted frequently by this

Court. Recently, in Michigan v. Doran

(1978) 439 U.S. 282, the court stated:

"The Extradition Clause was in-

tended to enable each state to bring

9.

offenders to trial as swiftly as

possible in the state where the

alleged offense was committed. (Cit.

omitted.) The purpose of the Clause

was to preclude any state from becom-

ing a santuary for fugitives from

justice of another state and thus

'balkanize' the administration of

criminal justice among the several

states. It articulated, in mandatory

language, the concepts of comity and

full faith and credit, found in the

immediately preceding clause of Art.

IV. The Extradition Clause, like the

Commerce Clause, served important

national objectives of a newly develop-

ing country striving to foster

national unity." (439 U.S. at pp.

287-288.)

The court went on to note that interstate

extradition was intended to be a summary

10.

executive proceeding in which the judi-

ciary plays an extremely limited rule.

Thus:

"Once the governor has granted

extradition, a court conside. ing

release on habeas corpus can do no

more than decide (a) whether the

extradition documents on their face

are in order; (b) whether the peti-

tioner has been charged with a crime

in the demanding state; (c) whether

the petitioner is the person named in

the request for extradition; and (d)

whether the petitioner is a fugitive.

These are historic facts readily

verifiable." (439 U.S. at p. 289.)

In a previous decision which is

entirely consistent with Michigan v.

Doran, this Court held unequivocally

that the courts of an "asylum" or "send-

ing'' state may not adjudicate the

pe eS

constitutionality of the conditions of

prisons in the demanding state. In

Sweeney v. Woodall (1952) 344 U.S. 86,

89-90, the court held:

"The scheme of interstate rendition,

as set forth in both the Constitution

and the statutes which Congress has

enacted to implement the Constitution,

contemplates the prompt return of a

fugitive from justice as soon as the

state from which he fled demands hin;

these provisions do not contemplate

an appearance by Alabama [the demanding

state] in respondent's asylum to defend

against the claimed abuses of its

prison system. Considerations funda-

mental to our federal system require

that the prisoner test the claimed

unconstitutionality of his treatment

by Alabama in the courts of that

State."' (footnotes omitted.)

A2.

The rationale of the Sweeney decision

is particularly applicable to the present

case. In Sweeney, this Court was not

only concerned with preserving harmony

between the states, but it also eschewed

the concept that a prisoner who resorted

to escape and who managed to cross a

state line should be able to litigate

constitutional claims about his imprison-

ment in a foreign court. This Court

noted:

"Had he never eluded the custody of

his former jailers he certainly would

be entitled to no privilege permitting

him to attack Alabama's penal process

by an action brought outside the ter-

ritorial confines of Alabama in a

forum where there would be no one to

appear and answer for that State."

(344 U.S. at p. 89.)

In the present case, documents

13.

provided by the Governor of Alabama

demonstrate that Walker was received by

the Arkansas Department of Corrections

in December 1965, and that he escaped

in 1973. During that time, inmates of

the Arkansas prisons filed class action

suits challenging the conditions of their

confinement, and the federal courts have

retained jurisdiction over those claims

ever since. In chronological order,

the reported decisions in these cases

are Holt v. Sarver (E.D. Ark. 1969)

300 F.Supp. 825; Holt v. Sarver (E.D.

Ark, 1970) 309 F.Supp. 362; Holt v.

Sarver (8th Cir. 1971) 442 F.2d 304;

Holt v. Hutto (E.D. Ark. 1973) 363 F.Supp.

194; Finney v. Arkansas Board of

Corrections (8th Cir. 1974) 505 F.2d

194; Finney v. Hutto (E.D. Ark. 1976)

410 F.Supp. 251; Finney v. Hutto

14.

(8th Cir. 1977) 548 F.2d 740; Hutto v.

Finney (1978) 437 U.S. 678; and Finney v.

Mabry (E.D. Ark. 1978) 458 F.Supp. 720.

In the most recent decision, Finney v.

Mabry, the court tentatively approved a

settlement agreement authorizing the

appointment of a Compliance Coordinator

to monitor and report upon changing con-

ditions in the Arkansas prisons. Inmates

who did not resort to "self help" by es-

caping have relied upon the federal court

in Arkansas to resolve their claims and

are presumably bound by the recent settle-

ment agreement. Therefore, in the pres-

ent case there are even more compelling

reasons than in Sweeney why Walker should

be precluded from litigating his consti-

tutional claims in the California courts.

In this case, federal relief has been

available and effective.

It is apparent that the order of

aS.

the California Supreme Court is inconsis-

tent with Michigan v. Doran and Sweeney v.

Woodall. Moreover, it is apparent that

the California Supreme Court did not merely

abuse its discretion by ordering a hearing

in California on the constitutionality

of Arkansas prisons. Decisions of this

Court demonstrate that the Extradition

Clause limits the jurisdiction of the

courts in the "asylum" or "sending" state;

it does not merely suggest guidelines for

the exercise of judicial discretion.

Prior to the adoption of the Con-

stitution, the rendition of fugitives

from justice was governed by principles

of comity between sovereign states.

(Innes v. Tobin (1916) 240 U.S. 127, 130-

es However, in some respects, in-

cluding the interstate rendition of

fugitives, the Constitution limited the

sovereignty of the states and imposed

16.

binding obligations upon them. (Nevada

v. Hall (1979) 440 U.S. 410, 425; Common-

wealth of Kentucky v. Denrison (1860)

24 How. 66, 100-103.)

This Court has stated that "[o]ne

accused of crime has a right to a full and

fair trial according to the law of the

government whose sovereignty he is alleged

to have offended, but he has no more than

that.'"' (Ponzi v. Fessenden (1922) 258

U.S. 254, 260.) This principle was recog-

nized by the framers of the Extradition

Clause and by the Congress when it provided

a procedure for the prompt arrest and

delivery of fugitives. (See Appleyard v.

Massachusetts (1906) 203 U.S. 222, 226-

228; Matter of Strauss (1905) 197 U.S.

324, 331, 333; compare Hyatt v. Corkran

(1903) 188 U.S. 691.) (Extradition Clause

does not apply to persons who are not

fugitives.)

oe

The procedure established by Congress

incorporates certain prerequisites to law-

ful extradition. It must be shown that

the person arrested is charged with a

crime in the demanding state, that he is

a fugitive from justice, and that a proper

demand has been made for his extradition.

(Pierce v. Creecy (1908) 210 U.S. 387,

401.) While a person arrested for extra-

dition may always allege that these pre-

requisites have not been met (McNichols

v. Pease (1907) 207 U.S. 100, 109; Roberts

v. Reilly (1885) 116 U.S. 80, 94), this

Court has consistently held that other

matters may not be considered. (E.g.

Michigan v. Doran, supra, 439 U.S. 282

(asylum state's courts may not review

probable cause determination by demanding

state); Hogan v. O'Neil (1921) 255 U.S.

52, 55 (sufficiency of evidence to support

charge may not be reviewed in asylum

18.

state); Biddinger v. Commissioner of

Police (1917) 245 U.S. 128, 135 (defenses

to the criminal charge may not be con-

sidered in the asylum state); Drew v. Thaw

(1914) 235 U.S. 432, 439-440 (insanity at

the time of the alleged offense may not

be considered in the asylum state);

Strassheim v. Daily (1911) 221 U.S. 280,

283, 286 (sufficiency of evidence to sup-

port criminal charge may not be considered

in the asylum state); Marbles v. Creecy

(1909) 215 U.S. 63, 69 (fear for Life or

claimed inability to receive fair trial

may not be considered in the asylum state);

Pierce v. Creecy, supra, 210 U.S. 387

(technical sufficiency of indictment may

not be considered in the asylum state);

Pearce v. Texas (1894) 155 U.S. 311 (con-

stitutionality of the laws of the demanding

state may not be adjudicated by the asylum

state); Lascelles v. Georgia (1893) 148

19.

U.S. 537, 544-545 (potential danger to

the fugitive may not be considered in the

asylum state); Commonwealth of Kentucky

v. Dennison, supra, 24 How. 66 (nature of

the crime charged is irrelevant).)

The cases noted above demonstrate

the limitations on the jurisdiction of

the courts in any "asylum" or "sending"

state. The need for such Limitations is

as great today as it was when the Extra-

dition Clause was adopted. Modern com-

munication and transportation enhance both

the likelihood of flight across state

lines and the likelihood of the eventual

apprehension of such fugitives. Increased

transportation costs and economic pressures

on governments have increased rather than

diminished the need for mutual support

among the states in the area of interstate

extradition.

In the present case, the Governor

20.

of the State of Arkansas has submitted a

demand for the extradition of James Dean

Walker, and has supplied proof that Walker

was convictedin that state of murder in

the first degree, was sentenced to prison

for the remainder of his natural life,

and is currently charged with escaping

from the custody of the Arkansas Depart-

ment of Corrections. The California

Governor has honored that demand and has

issued a warrant for the arrest and rendi-

tion of Mr. Walker. Walker has not denied

that the extradition documents are in

order, that he is charged with and con-

victed of crimes in Arkansas, that he is

the person named in the request for extra-

dition, or that he is a fugitive from

justice. Therefore, he has presented no

issue over which any court within the

State of California has jurisdiction.

Consequently, the order of the California

21.

Supreme Court prohibiting execution of

the Governor's warrant and directing

that a hearing be held to test the con-

stitutionality of Arkansas' prisons is in

excess of the court's jurisdiction and

must be set aside.

22.

CONCLUS ION

For the foregoing reasons, it is

respectfully requested that the instant

application for writ of certiorari be

granted.

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General

ROBERT H. PHILIBOSIAN

Chief Assistant Attorney General

Criminal Division

ARNOLD O. OVEROYE

Assistant Attorney General

GREGORY W. BAUGHER

Deputy Attorney General

Attorneys for Petitioner

GWB:hb

6-17-80

80YS0003

23

APPENDIX A

Crim. No. 21422

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

In Re Walker on Habeas Corpus.

| Supreme Court

Filed

April 9, 1980

G. E. BISHEL, Clerk

Deputy

The Sheriff of the County of El

Dorado is ordered to show cause before

the Superior Court of El Dorado County

with directions to that court to conduct

hearings to determine if the peniten-

tiary in which Arkansas seeks to confine

petitioner is presently operated in

conformance with the Eighth Amendment of

the United States Constitution and there-

after decide the petition on its merits.

The written return shall be served

and filed on or before April 21, 1980.

Pending final determination of this

proceeding execution of the Governor's

Warrant of Extradition is stayed, and

the Sheriff of the County of El Dorado

is directed not to release petitioner

into the custody of any agent of the

State of Arkansas.

_BIRD ee

Chief Justice

__.___ MOSK

Justice

____ MANUEL

Justice

___NEWMAN

Justice

~ a eee"“Justice |

~~“Justice

Justice |

APPENDIX B

Crim. No. 21422

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

In Re Walker On Habeas Corpus.

Petition for rehearing and for

stay is denied.

Clark, J., and Richardson, J., are

of the opinion that the petition should

be granted.

BIRD

Chief Justice

I, Ge Ee. BISHEL, Clerk of the

Supreme Court of the State of

California, do hereby certify

that the preceding is a true

copy of an order of this Court,

as shown by the records of my

office.

Witness my hand and the seal

of the Court, this 17th day of

April A.D., 19 80

Clerk,

By J. Rossi

Deputy Clerk

APPENDIX c

UNITED STATES CONSTITUTION,

ARTICLE IV, Section 2, Clause 2

"A person charged in any State with

Treason, Felony, or other Crime, who

shall flee from Justice, and be found in

another State, shall on Demand of the

executive Authority of the State from

which he fled, be delivered up, to be

removed to the State having Jurisdiction

of the Crime."

UNITED STATES CODE

18 U.S.C. § 3182

"Whenever the executive authority

of any State or Territory demands any

person as a fugitive from justice, of

the executive authority of any State,

District or Territory to which such per-

son has fled, and produces a copy of an

indictment found or an affidavit made

before a magistrate of any State or

Territory, charging the person demanded

with having committed treason, felony,

or other crime, certified as authentic

by the governor or chief magistrate of

the State or Territory from whence the

person so charged has fled, the executive

authority of the State, District or

Territory to which such person has fled

shall cause him to be arrested and

secured, and notify the executive

l.

authority making such demand, or the

agent of such authority appointed to

receive the fugitive, and shall cause

the fugitive to be delivered to such

agent when he shall appear. If no such

agent appears within thirty days from

the time of arrest, the prisoner may be

discharged."

CALIFORNIA PENAL CODE

"§ 1548.1 Governor; duty to cause

arrest and delivery

"Subject to the provisions of this

chapter, the Constitution of the United

States, and the laws of the United

States, it is the duty of the Governor

of this State to have arrested and

delivered up to the executive authority

of any other State any person charged in

that State with treason, felony, or

Other crime, who has fled from justice

and is found in this State."

CALIFORNIA PENAL CODE

"§ 1548.2 Demand for extradition; form

and contents; documents to

accompany demand; charge of

crime; authentication

"No demand for the extradition of

a person charged with crime in another

State shall be recognized by the Governor

unless it is in writing alleging that

the accused was present in the demanding

State at the time of the commission of

the alleged crime, and that thereafter

he fled from that State. Such demand

shall be accompanied by a copy of an

indictment found or by information or

by a copy of an affidavit made before a

magistrate in the demanding State to-

gether with a copy of any warrant which

was issued thereon; or such demand shall

be accompanied by a copy of a judgment

of conviction or of a sentence imposed

l.

in execution thereof, together with a

statement by the executive authority of

the demanding State that the person

claimed has escaped from confinement or

has violated the terms of his bail,

probation or parole. The indictment,

information, or affidavit made before

the magistrate must substantially charge

the person demanded with having committed

a crime under the law of that State; and

the copy of indictment, information,

affidavit, judgment of conviction or

sentence must be certified as authentic

by the executive authority making the

demand."

APPENDIX D

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF EL DORADO

Date February 27, 1980 Court met at

9:00 a.m.

Dept. No. l

PRESENT:

Hon. CHAS. F. FOGERTY, Judge

Linda English, Reporter

June L. Wills, Deputy Clerk

John Roseberry, Bailiff

ee ee

Title: In the Matter of the Application

of ROBERT W. GEANDROT, Petitioner

(in Behald of JAMES DEAN WALKER) for

the Writ of Habeas Corpus

Counsel: Appearing:

RONALD TEPPER, District Attorney, for

The People

PAUL GERVAIS of Gervais & Geandrot for

Petitioner

Nature of Proceedings Action No. 35142

PETITION FOR WRIT OF HABEAS

CORPUS (From 2/21/80)

(cont'd. )

Petitioner present;

It is Ordered that the Writ applied

for is denied on the basis of lack of

jurisdiction to entertain the merits of

the case.

It is further Ordered that the

application for a Writ of Habeas Corpus

Or other like remedy in the Federal

Courts, the petitioner shall be allowed

until 3/10/80 to apply for said Writ or

Writs and pending said date, it is

Ordered that JAMES DEAN WALKER be re-

tained in custody of respondent until

further Order of the Court of competent

jurisdiction.

ce: District Attorney

Gervais & Geandrot, P. O. Box

1356, South Lake Tahoe, Ca. 95705

APPENDIX E

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

THIRD APPELLATE DISTRICT

3 Crim. 10729

In re

JAMES DEAN WALKER,

on Habeas Corpus

By the Court:

The petition for writ of habeas

corpus is denied.

Dated: March 6, 1980.

PUGLIA, P. J.

F ILE D

MAR - 6 1980

Court of Appeal-Third District

Wilfried J. Kramer, Clerk

By Deputy

APPENDIX F

FILED

Mar 12, 1980

Clerk, U.S. District Court

Eastern District of California

By Jo Le

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

-=--00000--=-=-

JAMES DEAN WALKER,

Petitioner,

CIVIL NO.

VS.

RICHARD PACILEO, S-80-164 LKK

Sheriff, et al.,

Respondents.

)

)

)

)

)

)

)

)

)

)

)

MEMORANDUM

Petitioner, an inmate of El Dorado

County Jail is proceeding with an appli-

cation for a writ of habeas corpus,

seeking to challenge his imminent extra-

dition to the State of Arkansas, on the

grounds that returning petitioner to

l.

Arkansas would be returning him to a

penal system which has been declared to

be in violation of the Eighth Amendment's

proscription against cruel and unusual

punishment and that petitioner's life

would be in jeopardy, not only because

of the generally brutal conditions but

also because he received threats from

prison officials prior to his escape.

Petitioner has also requested a stay of

extradition pending the court's deter-

mination of the merits of petitioner's

application. A hearing was held on the

latter request on March 7, 1980, with

petitioner represented by Robert

Geandrot and Paul Gervais and with the

State of Arkansas informally represented

by Robert Jibson, Deputy Attorney

General for the State of California.

After hearing argument in this case

2.

and after reading and considering the

application for a writ of habeas corpus,

the exhibits, and the memorandum of

points and authorities, this court

denied the request for the stay.

This memorandum is a memorialization of

the decision rendered from the bench

on March 7, 1980.

The court treated the request for a

stay as one for a temporary restraining

order or for a preliminary injunction.

This being so, the court examined the

petitioner's likelihood of success on

the merits and the possible irreparable

injury. Finding that there was little

possibility that the court would reach

the merits, however, this court denied

the motion for a stay. See City of

Anaheim v. Kleppe, 590 F.2d 285,

288 n.4 (9th Cir. 1978); Benda v.

3.

Grand Lodge of Int'l Ass'n, 584 F.2d

308, 315 (9th Cir. 1978).

It seems unlikely that the court

would ever reach a determination on the

merits because it appears that peti-

tioner has not exhausted his state

remedies. His application shows that he

sought a writ of habeas corpus from the

El Dorado County Superior Court and that,

when this was denied, with a stay of

extradition granted to allow him to seek

other review, he proceeded to the

California District Court of Appeal,

Third Appellate District. Counsel was

informed by telephone that his applica-

tion for a writ of habeas corpus had

been denied by that court and that no

stay was granted to allow him to seek

further review. Petitioner did not

present his application for a writ of

4.

habeas corpus to the California Supreme

Court; rather, he filed an application

in this court on March 7, 1980.

The exhaustion of state remedies is

a prerequisite to the consideration

of each claim sought to be presented in

federal habeas corpus proceedings. See

Pitchess v. Davis, 421 U.S. 482 (1975);

Picard v. Connor, 404 U.S. 270 (1971);

28 U.S.C. § 2254(b). State remedies

have not been exhausted uniess the

petitioner's federal claims have been

fairly presented to the state courts

and the state's highest court has con-

sidered the claims on their merits.

See Carothers v. Rhay, 594 F.2d 225

(9th Cir. 1979). This exhaustion re-

quirement has been held to be applicable

to interstate extradition proceedings.

See Giles v. Merrill, 322 F.2d 786,

5.

787 (10th Cir. 1963); Tickle v.

Summers, 270 F.2d 848, 850 (4th Cir.

1959); Garrison v. Smith, 413 F.Supp.

747, 751 (N.D. Miss. 1976) Sutherland

v. Love, 359 F.Supp. 983, 986 (E.D.

Ark. 1973). Petitioner's allegations

show that he has not applied to the

California Supreme Court for a writ of

habeas corpus and that, therefore, he

has not exhausted state remedies.

Petitioner argues that the exhaus-

tion requirement attaches only to appli-

cations for writs brought pursuant to

28 U.S.C. § 2254. This requirement does

not apply, he contends, to writs sought

under 28 U.S.C. § 2241(c)(1), which

provides in part, that "the Writ of

Habeas Corpus shall not extend to a

prisoner unless he is in custody under

or by color of the authority of the

6.

United States. ...%2/ Petitioner asserts

that he is in custody by the color of

1/ 28 U.S.C. § 2241(c) provides:

The writ of habeas corpus shall not

extend to a prisoner unless--

(1) He is in custody under or by color

of the authority of the United States

Or is committed for trial before some

court thereof; or

(2) He is in custody for an act done or

omitted in pursuance of an Act of Con-

gress, Or an order, process, judgment

or decree of a court or judge of the

United States; or

(3) He is in custody in violation of the

Constitution or laws or treaties of the

United States; or

(4) He, being a citizen of a foreign

state and domiciled therein is in custody

for an act done or omitted under any

alleged right, title, authority, privi-

lege, protection, or exemption claimed

under the commission, order or action

of any foreign state, or under color

thereof, the validity and effect of

which depend upon the law of nationa;

or

(5) It is necessary to bring him into

court to testify or for trial.

(continued)

7.

the authority of the United States be-

cause it is the extradition clause of

the United States Constitution, Art.

IV, § 2, and the implementing federal

Statutes, see 18 U.S.C. § 3181 et seg.,

which provide the authority for the

states to issue warrants of extradition.

Even if an application for a writ

of habeas corpus challenging extradition

is properly brought under 28 U.S.C. §

2441 rather than under 28 U.S.C. § 2254,

a question that the court does not decide,

Footnote 1 continued:

28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof,

a circuit judge, or a district court

shall entertain an application for a writ

of habeas corpus in behalf of a person

in custody pursuant to the judgment of

a State court only on the ground that

he is in custody in violation of the

Constitution or laws or treaties of

the United States.

8.

the exhaustion requirement nevertheless

applies. In Dye v. Johnson, 338 U.S.

864 (1949), the Supreme Court, in a

per curiam opinion, reversed a decision

of the Court of Appeals for the Third

Circuit, which had held that the exhaus-

tion requirement did not apply to a

habeas proceeding challenging extradition,

which had been brought pursuant to the

predecessor statute to 28 U.S.C. § 2241.

See Johnson v. Dye, 175 F.2d 250,

253 (3d Cir. 1949). As its basis for

reversal, the Supreme Court cited

Ex Parte Hawk, 321 U.S. 114 (1944), a

case detailing the exhaustion requirement

in habeas corpus proceedings. See also

Garrison v. Smith, supra. No matter

what the statutory basis for the instant

petition, therefore, petitioner is re-

quired to exhaust his state remedies.

9.

Petitioner also argues that if §

2254 is found to govern, subsection b

of that statute controls the case and

excuses his failure to exhaust state

remedies. That provision states that

state remedies need not be exhausted if

there is an “absence of available state

corrective process or existence of cir-

cumstances that render such process

ineffective to protect the rights of

petitioner." Petitioner contends that

the extreme time pressure in this case

renders the state proceedings ineffective

to protect his rights. Because the Dis-

trict Court of Appeal, Third Appellate

District, denied his application for a

writ without a stay, petitioner asserts

that he could not risk petitioning the

California Supreme Court for fear that

he would be extradited and thus lose his

10.

remedy, Should that court decline to

grant a stay or the petition for a writ.

Petitioner cannot claim that the

state remedies are ineffective since he

has not sought to utilize them. See

Fleming v. Klinger, 363 F.2d 378, 379

(9th Cir. 1966); Pate v. Wilson, 348

&.2d 900, 901 (9th Cir. 1965); Hudgins v.

Circuit Court of Cheasapeake, 294 F.

Supp. 258, 260 (E.D. Va. 1968). It is

as possible that the state court would

enter a stay of extradition or grant

relief as it is that the state court

would not grant a stay or the petition

for a writ. Petitioner's fear that the

latter possibility will come to pass

does not render the state processes in-

effective to protect his rights. See

Fleming v. Klinger, supra. Thus,

petitioner has not justified his failure

ll.

to exhaust state remedies.

The court is mindful that the

exhaustion requirement is a matter of

comity and is not a limitation on the

power or jurisdiction of a district

court to entertain an application for a

writ of habeas corpus. See Picard v.

Connor, supra, at 275; Harris v.

Superior Court, 500 F.2d 1124, 1127

(9th Cir. 1974); cert. den., 420 U.S.

973 (1975). Comity requires that the

orderly administration of justice in a

state court is not to be interfered with,

except in rare cases which present cir-

cumstances of peculiar urgency. See

United States ex rel. Kennedy v. Tyler,

269 U.S. 13, 17 (1925); Macomber v.

Gladden, 304 F.2d 487, 490 (9th Cir.

1962); Wisconsin Potowatomies v. Wilsey,

377 F.Supp. 1153, 1156 (M.D. Fla. 1974).

12.

Federal courts should not exercise their

power to consider a petition for a writ

of habeas corpus except in "‘'cases of

urgency, involving the authority and

operations of the General Government,

or the obligations of this country to,

or its relations with foreign nations.'"

Id., quoting Ex Parte Royall, 117 U.S.

241 (1886) see also, United States ex

rel. Kennedy v. Tyler, supra;

Petition of Brabson, 167 F.Supp. 619,

621 (S.D.N.¥. 1958).2/ Despite the

seriousness of petitioner's allegations,

it does not appear that the circumstances

2/

i Petitioner's reliance on Thomas v.

Teets, 205 F.2d 236 (9th Cir. 1953),

is misplaced. It is true that the Court

of Appeals stayed Thomas’ execution

pending a decision on the merits of his

application for a writ of habeas corpus,

but in that case, consideration of the

merits was proper because Thomas had

exhausted his state remedies. Id.

at 241.

13.

of this case warrant the departure from

the considerations of comity underlying

the exhaustion requirement. In so

deciding, the court notes that the state

courts share the duty of protecting con-

stitutional rights, see Stone v. Powell,

428 U.S. 465 (1976), so that despite the

court's conviction that this is not a

proper case for relaxation of the exhaus-

tion requirement, petitioner is not left

without a state forum in which to air

his constitutional grievances.

This court's denial of petitioner's

request for a stay of extradition is

based largely on its evaluation that the

merits of the application for the writ

would never be reached because of peti-

tioner's failure to exhaust his state

remedies. However, it is also possible

that the issues raised in petitioner's

14.

application perhaps are not cognizable

in a district court in the asylum state.

See Price v. Pitchess, 556 F.2d 926,

928 (9th Cir.), cert. den., 434 U.S.

965 (1977); United States ex rel. Tucker

v. Donovan, 321 F.2d 114, 116 (2d Cir.

(1963), cert. den. sub nom. Tucker v.

Kross, 375 U.S. 496 (1964); cf.

Sweeney v. Woodall, 344 U.S. 86 (1953);

Ross v. Middlebrooks, 188 F.2d 308

(9th Cir.); cert. den., 342 U.S. 862

(1951); United States ex rel. Little

v. Ciuros, 452 F. Supp. 388 (S.D. N.Y.

1978). In such a situation a stay would

not be proper.

A final consideration convinces the

court that the issuance of a stay is not

the proper course to follow. In Younger

v. Harris, 401 U.S. 37 (1971), the

Supreme Court, faced with defining the

15.

limits of federal judicial intervention

in pending state criminal cases, announced

"the fundamental policy against federal

interference with state criminal

prosecutions." Id. at 46. Petitioner's

request for a stay of extradition is a

request that this court stop an already

commenced state criminal proceeding.

See United States ex rel. Frisbee v.

Rapone, 449 F. Supp. 509, 510 (E.D. Pa.

1978).

Petitioner has alleged nothing that

would remove his case from the operation

of the policy of equitable restraint

announced in Younger. He has made no

showing that the state courts are inade-

guate or inhospitable forums for his

claims, nor has he alleged that the

current state court proceedings are being

taken in bad faith or for purposes of

16.

harassment. See Younger v. Harris,

supra, at 53; Boyle v. Landry, 401

U.S. 77, 81 (1971). Thus, the policy of

Younger suggests that a stay of extra-

dition would be improper.

For the reasons stated above, IT

IS THEREFORE ORDERED that petitioner's

request for a stay of extradition is

hereby denied.

DATED: March 12, 1980.

MILTON L. SCHWARTZ

UNITED STATES DISTRICT JUDGE

17.